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OPINION
PER CURIAM.
Derrick Rankine, proceeding pro se, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an Immigration Judge’s (“IJ”) order of removal. We will summarily deny the petition for review because it does not raise a substantial question.
Derrick Rankine is a native and citizen of Jamaica. He was admitted to the United States as a lawful permanent resident in 1993. A notice to appear was issued in 2008 charging that Rankine was subject to removal for having committed the aggravated felonies of rape and a crime of violence for which the term of imprisonment is at least one year.
Rankine proceeded pro se at his immigration hearing. The Government submitted evidence showing that Rankine was convicted of rape and related offenses in 2001 in Pennsylvania state court. He received consecutive sentences of ten to twenty years in prison for rape and five to ten years in prison for aggravated indecent assault. The IJ found Rankine removable as charged. The IJ rejected Rankine’s argument that he had become a United States national based on his military service here. Noting that it did not appear that Rankine was eligible for any form of relief from removal, the IJ ordered his removal to Israel or Jamaica, the coun*603tries Rankine had designated should he be removed.
The BIA dismissed Rankine’s appeal, stating that it agreed with the IJ that Rankine’s conviction involved the aggravated felonies of rape and a crime of violence having a prison term of at least one year. The BIA also rejected Rankine’s argument that he was not removable because he is a United States national. Finally, the BIA denied a motion to reopen filed by Rankine asserting that he had filed another petition for post-conviction relief in Pennsylvania state court. The BIA explained that Rankine’s conviction was affirmed on direct appeal and that the pursuit of post-conviction remedies did not alter the finality of Rankine’s conviction for immigration law purposes.
Rankine filed a pro se petition for review, a motion for a stay of removal, and a motion for appointment of counsel. The Government moves to dismiss the petition for review or, in the alternative, requests that we summarily deny the petition for review.
The Government argues that the Court should dismiss the petition for review for lack of jurisdiction because Rankine, an aggravated felon, raises no constitutional claims or questions of law for our review. See 8 U.S.C. §§ 1252(a)(2)(C),(D). We disagree. Rankine’s argument that he is innocent of the crime underlying the removal charges and is seeking post-conviction relief presents a legal question as to whether the pendency of his post-conviction motions negates the finality of his conviction for immigration removal purposes. Rankine also asserts that the IJ denied him due process at his hearing. We thus deny the Government’s motion to dismiss.
Although we conclude that we have jurisdiction over the petition for review, we agree with the Government that the petition for review does not present a substantial question. As noted by the BIA, the pursuit of post-conviction remedies does not alter the finality of Rankine’s conviction for immigration law purposes. Pa-redes v. U.S. Attorney General, 528 F.3d 196, 198-99 (3d Cir.2008). Thus, unless and until Rankine’s rape conviction is overturned as a result of his collateral motions, that conviction properly served as the basis for the charges of removability. Id.
In addition to asserting that he was wrongly convicted, Rankine argued in his brief to the BIA that the IJ violated his due process rights by not allowing him to testify about his claim of innocence, by not holding a hearing on his motion to compel discovery of documents related to his state court criminal proceedings, and by forcing him to proceed without counsel. These claims lack merit. Rankine may not collaterally challenge his state court conviction in his immigration proceedings. Drakes v. I.N.S., 330 F.3d 600, 601 (3d Cir.2003). Thus, any testimony to that effect would have been irrelevant. In addition, the record reflects that Rankine received copies of the conviction documents submitted by the Government to support the charges of removability. He was not entitled to other documents related to his criminal proceedings.
The record also reflects that on September 24, 2008, at his initial hearing before Immigration Judge Jeffrey Romig, Rankine stated that he wished to represent himself. Shortly thereafter, Rankine filed a motion for appointed counsel. On October 16, 2008, Immigration Judge Romig denied the motion, explaining that there is no right to appointed counsel in immigration proceedings and advising Rankine that, if he did not obtain counsel by the time of his next hearing, he should be prepared to represent himself. At his *604next hearing, which was held on March 4, 2009, before IJ Andrew Arthur, Rankine stated that he had asked for a lawyer, but he was not provided counsel. The IJ told Rankine he did not have a right to appointed counsel and provided a list of lawyers who Rankine might contact for representation. Rankine’s next hearing was held on May 6, 2009. Rankine told the IJ that he had not found a lawyer. The IJ asked Rankine how he wished to proceed, and Rankine replied that he would represent himself because he did not know if he could find a lawyer. The IJ then told Rankine his rights and proceeded with his hearing. Rankine did not request more time to find counsel. Based on these facts, Rankine was not denied his right to due process.
To the extent Rankine maintains that he is a national of the United States, there is no legal support for Rankine’s contention that he became a United States national based on his performance of military service. As recognized by the BIA and IJ, we have held that one must complete the process of becoming a naturalized citizen to be deemed a United States national. Salim v. Ashcroft, 350 F.3d 307, 309-10 (3d Cir.2003). Rankine stated at his hearing that he had not been naturalized or taken the oath of allegiance following an application for naturalization. Finally, to the extent Rankine challenges his removability as an aggravated felon, there is no question that his rape conviction constitutes the aggravated felony of rape under 8 U.S.C. § U01(a)(43)(A).1
Accordingly, we will deny the petition for review.2
. Because Rankine is removable on this basis, it is unnecessary to address the additional charge of removability under § 1101(a)(43)(F). To the extent Rankine asserted in the administrative proceedings that he is eligible for cancellation of removal, he is not eligible for this form of relief because he is an aggravated felon. Garcia v. Attorney General, 462 F.3d 287, 291 (3d Cir.2006).
. Rankine's motion for a stay of removal and motion for appointment of counsel are denied.
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OPINION
PER CURIAM.
Frederick H. Banks, a federal inmate, appeals from the denial of his motion titled, “Motion to Recuse Nora Barry Fischer from Hearing Motion to Vacate; Motion to Vacate, Set Aside, and Correct Sentence under 28 U.S.C. § 2255; Motion to Modify Sentence for Clear Error 18 U.S.C. § 3582(c)(1)(b).” (District Court Docket No. 459). By Order entered July 14, 2009, the District Court denied the request for recusal, explained that Banks’s motion is procedurally improper to the extent that *609Banks seeks to initiate a civil action against numerous purported defendants, and denied collateral relief to the extent that Banks sought to file a second or successive 28 U.S.C. § 2255 motion without having first securing permission from this Court to do so.
The District Court thereafter received Banks’s “Reply” to the government’s response in opposition to his motion. By Order entered July 20, 2009, the District Court denied Banks’s reply as moot given that the Court had already denied the underlying motion. To the extent that Banks’s “Reply” could be viewed as a motion for reconsideration of the July 14 Order, the District Court denied reconsideration. Banks timely filed this appeal.
This Court has appellate jurisdiction under 28 U.S.C. § 1291. After a careful review of the record, we will summarily affirm the District Court’s judgment in accordance with Third Circuit Internal Operating Procedure Chapter 10.6.1
The record reflects that a jury in the Western District of Pennsylvania convicted Banks in 2004 of mail fraud, criminal copyright infringement, money laundering, uttering and possessing counterfeit or forged securities, and witness tampering. The District Court sentenced Banks to sixty months of imprisonment plus three years of supervised release. This Court affirmed, see United States v. Vampire Nation, 451 F.3d 189 (3d Cir.2006), and the United States Supreme Court denied cer-tiorari review. The District Court denied Banks’s first 28 U.S.C. § 2255 motion on the merits, and in December 2007, this Court denied Banks a certificate of appeal-ability. See C.A. No. 06-3671.
Banks has continued to file numerous motions in the District Court, including the motion that is the subject of the present appeal. The District Court was correct that, insofar as Banks sought to initiate a civil lawsuit through the filing of another § 2255 motion, his filing was procedurally improper. Banks, an experienced pro se litigant, is no doubt aware of the manner in which to commence a civil proceeding in federal court, and the District Court committed no error in its refusal to allow Banks to pursue civil claims in connection with the post-conviction review of his criminal conviction.
Insofar as Banks sought to style his § 2255 filing as a civil suit so that he could name Judge Fischer as a defendant and seek recusal, that action was patently improper. Indeed, other than merely naming Judge Fischer in his proposed civil action, Banks offered no allegation at all to question Judge Fischer’s impartiality in presiding over these post-conviction proceedings. The District Court correctly denied recusal.
Finally, as the District Court has advised Banks previously, he must obtain authorization from this Court before he can proceed with a “second or successive” § 2255 attack. See 28 U.S.C. § 2244; United States v. Miller, 197 F.3d 644, 649 (3d Cir.1999). Banks’s various arguments based on his alleged status as a Lakota Sioux Indian do not exempt him from having to comply with the law governing the filing of second or successive § 2255 motions. Accordingly, the District Court did not err in refusing to consider the unauthorized § 2255 motion. The District Court likewise committed no error in denying reconsideration insofar as Banks’s *610“Reply” was liberally construed as a motion for reconsideration of the July 14 Order; Banks offered no viable ground upon which the District Court could have reconsidered its refusal to entertain his motion.
In sum, because this appeal presents “no substantial question,” 3d Cir. IOP Ch. 10.6, the District Court’s judgment will be affirmed.
. To the extent that Banks needs a certificate of appealability to pursue this appeal, it is denied. Reasonable jurists could not debate the District Court’s stated reasons for denying Banks's motion. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
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*611OPINION
McKEE, Circuit Judge.
Denis Segundo Calderón-Minchóla was convicted by a jury of one count of willful failure and refusal to make a timely application in good faith for documents necessary to remove him from the United States pursuant to a final order of removal, in violation of 8 U.S.C. § 1253(a)(1)(B). He now appeals the sentence of 60 months of imprisonment that was imposed for that conviction. Because we conclude that the record does not establish the reasonableness of the sentence, we will vacate the sentence and remand for resentencing consistent with this opinion.
I.
We have jurisdiction over Calderon-Minchola’s challenge to the reasonableness of his sentence pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291. See United States v. Cooper, 437 F.3d 324, 327 (3d Cir.2006). However, we have no jurisdiction to review his claim that the district court erred in not granting a downward departure under United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 4A3.1(b). See United States v. Powell, 269 F.3d 175, 179 (3d Cir.2001)(“[I]f the court chose to [deny downward departure] as an exercise of discretion, we have no jurisdiction to review its decision.”) (citing United States v. Denardi, 892 F.2d 269, 271-72 (3d Cir.1989)). The record here clearly establishes that the district court understood that it had discretion to grant the requested departure, but refused to exercise that discretion. See App. at 441. Thus, we will only review Calderon-Min-chola’s claim that his sentence was unreasonable under 18 U.S.C. § 3553(a).
II.
Inasmuch as we write primarily for the parties who are familiar with the factual and procedural history of this case, we will set forth only those facts necessary to our brief discussion.
On April 3, 2007, Calderon-Minchola was convicted of failure to cooperate with deportation proceedings brought against him for violation of 8 U.S.C. § 1253(a)(1)(B). That prosecution was based on his refusal to sign deportation documents while his federal habeas petition was pending in the Eastern District of Pennsylvania.1 As detailed in the Presen-tence Investigation Report (“PSR”), the probation office calculated a recommended sentencing range under the Guidelines of 77 to 96 months of imprisonment. That was based on Calderon-Minchola’s total offense level of 24 and criminal history category of IV.
Our review focuses on the third step of the sentencing process under United States v. Gunter, 462 F.3d 237 (3d Cir. 2006). In Gunter, we explained that a sentencing court must properly calculate the sentencing range suggested by the Guidelines, rule on any motions for upward or downward departure, and then undertake a meaningful consideration of all of *612the factors mandated by § 3553(a). See id. at 247.
Section 3553(a) requires sentencing courts to consider several factors, including the nature and circumstances of the offense; the history and characteristics of the defendant; the need for the sentence imposed; the kinds of sentences available; and the advisory range and policies of the Guidelines. In considering these factors, the sentencing court “should set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision making authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).
Here, the district court primarily expressed a concern for the likelihood of recidivism based on the defendant’s prior contact with the criminal justice system. See App. at 460. However, according to testimony offered by an Immigration Customs Enforcement Agent during the two-day trial, Calderon-Minchola would have been deported to Peru within thirty days of the removal order. See App. at 179, Trial Tr. 124-25, Apr. 2, 2007. Therefore, to the extent that considerations of recidivism might have otherwise been relevant, they were greatly attenuated here.
As we noted above, we lack jurisdiction to review the district court’s refusal to grant the downward departure that Calderon-Minchola requested based on his contention that his criminal history points exaggerated his prior record. We also note that the sentencing court was particularly attentive in listening to the very eloquent pleas that defense counsel made on his client’s behalf at sentencing. Notwithstanding the district court’s statement that “a variance of 17 months below the low end of the guideline range is sufficient [to meet the objectives of sentencing] and not greater than necessary to achieve sentencing objectives,” N.T., 10/5/07, at 340, we can not conclude, given the totality of circumstances here, that a sentence of 5 years imprisonment is “not greater than necessary.” 18 U.S.C. § 3553(a).
Section 3553(a) clearly states that a court must impose a sentence that is “sufficient but not greater than necessary, to comply with the purposes of [sentencing].” In United States v. Olhovsky, 562 F.3d 530 (3d Cir.2009), we explained that this concept has been referred to as the “principle of parsimony” and that the Supreme Court has emphasized that it is the overarching instruction of 18 U.S.C. § 3553(a). Id. at 548 (citing Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)). That principle is particularly important here because nothing on this record suggests that a shorter period of incarceration would not have adequately addressed each of the § 3553(a) factors.
Although the sentencing court “note[d] that the defendant has a criminal history dating back to 1987,” N.T., 10/5/07, at 339, the offense referenced was retail theft of sunglasses valued at less than twenty dollars when Calderon-Minchola was 19 years old. Moreover, the court did not explain why a 5 year incarcerative sentence was necessary given the defendant’s noteworthy involvement with his family, his consistent and protracted history of employment, his continuous pursuit of education, and his pending removal to Peru. We understand and appreciate the sentencing court’s concern that Calderon-Minchola had been convicted of aggravated assault, and we are not unsympathetic to concerns about the potential for recidivism that is often a consideration in sentencing proceedings. However, it is undisputed that Calderon-Minchola was to be deported to Peru. The court’s concerns that Calderon-Minchola might reoffend were therefore inconsistent with the reality facing Calderon-Minchola *613at the end of his incarceration. We therefore can not conclude that a period of incarceration of 5 years was necessary or appropriate under § 3553(a). Accordingly, on this record, we are unable to conclude that the sentence that was imposed was reasonable.
We realize that the final sentence is less than the sentence recommended under the Sentencing Guidelines. However, the recommended Guideline range is only one of several factors that must be considered. We have declined “to adopt a rebuttable presumption of reasonableness for within-guidelines sentences.” Cooper, 437 F.3d at 331-32. We will therefore not presume that a sentence that is less than the Guideline range is necessarily the minimum sentence that is consistent with the sentencing factors in § 3553(a). Allowing such a presumption to control our assessment of the compliance with the principle of parsimony would elevate the Guidelines above all of the other § 3553(a) factors that must considered at sentencing.
III.
For the reasons stated above, we will vacate the judgment of the district court and remand for resentencing.
. Calderon-Minchola's habeas petition was dismissed by the district court as untimely on June 14, 2007. His subsequent appeal to our Court was denied on October 12, 2007, nine days after his sentencing for refusal to sign his travel documents. We also rejected his petition to review the order for removal from the Board of Immigration Appeals ("BIA”) on December 12, 2007.
Previously, the BIA issued the order dismissing his appeal and denying his motion to defer judgment pending his federal litigation on May 17, 2006. An order of removal made by the immigration judge at the conclusion of proceeding under Section 240 of the Act becomes final upon dismissal of an appeal by the BIA. See 8 U.S.C. § 1101(a)(47)(B); see also 8 C.F.R. § 1241.1.
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SILER, Circuit Judge
dissenting.
With all due respect to my colleagues, I respectfully dissent. In my opinion, when the district court considered all of the factors under 18 U.S.C. § 3553(a), and departed below the Guidelines range for 17 months, the court complied with the sentencing discretion under Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
I agree that the Guidelines range for this offense appears to be unduly harsh for such conduct by Calderon-Minchola. Moreover, had I been the district judge in the case, I might very well have rendered a different sentence. However, “[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id. at 51, 128 S.Ct. at 597.
As the majority declares, we have not adopted a rebuttable presumption of reasonableness for within-Guidelines sentences. See United States v. Cooper, 437 F.3d 324, 331-32 (3d Cir.2006). The majority goes on to say that a sentence below the Guidelines range also does not have a presumption of reasonableness. Nevertheless, I would follow the decision in United States v. Tomko, 562 F.3d 558, 573-74 (3d Cir.2009) (en banc), where this court found a downward variance from a Guidelines range of 12 to 18 months to probation and home detention was not an unreasonable sentence. Therefore, in this case, I would likewise find that the variance of 17 months below the Guidelines range was not unreasonable.
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https://www.courtlistener.com/api/rest/v3/opinions/8474169/
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OPINION OF THE COURT
FISHER, Circuit Judge.
Brent J. Detelich (“Detelich”) appeals his conviction of one count of knowingly and willfully executing or attempting to execute a scheme to defraud a health care benefit program in violation of 18 U.S.C. §§ 1347 and 2 and one count of mail fraud in furtherance of the scheme in violation of 18 U.S.C. §§ 1341 and 2. For the reasons below, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Detelich was accused by the Government of leading a scheme to defraud High-mark Blue Cross/Blue Shield (“High-mark”) through Advanced Medical and Holistic (“AMH”), the chiropractic practice he owned and operated in Hermitage, Pennsylvania. According to evidence offered at trial, Detelich put his scheme into effect shortly after opening a second AMH office in Niles, Ohio. While in Niles, Dete-lich would ask office assistants in the Hermitage office to “pull” treatment cards and bill Highmark for treatments supposedly given to certain Highmark-covered patients. Employees of AMH eventually learned that they were billing Highmark for procedures that the patients never received. Evidence was also presented at trial that AMH employees, at Detelich’s direction, engaged in “upcoding,” a process of billing Highmark for more expensive procedures than those rendered.
Patients with Highmark insurance who were regularly billed for services that were not rendered were referred to by AMH employees as being on the “hit list.” Hit list patients would receive reimbursement checks from Highmark, cash them, and bring the money to AMH or directly to Detelich. Many of these patients would also sign blank treatment cards to facilitate AMH’s billing for services not rendered. AMH and Detelich would frequently reimburse the hit list patients some percentage of this payment, a process known as “fee-splitting.”
Detelich offered evidence that during 1999 and 2000 he instituted operational reforms at AMH. Detelich required ethics training for all employees and retained a coding consultant to establish a billing program and an attorney to establish a written compliance program. Detelich moved to California in 2000, leaving Dr. Donald Proper in charge of day-to-day operations at AMH.
Employees at AMH continued to bill hit list patients after Detelich moved to California. Hit list patients brought the cash from reimbursement checks to AMH instead of to Detelich personally. For in*619stance, on or after November 3, 2000, AMH submitted eighteen bills to High-mark for treatments not rendered to Doro-they Fender, the mother of an AMH employee. One Highmark check for $800.00 was sent to Ms. Fender via U.S. mail on November 7, 2000.1 While Detelich remained in California, Dr. Proper wrote to Detelich informing him that the hit list billing was continuing, but Detelich took no additional action to stop the illegal billing practices.
In late 2000, the FBI began investigating billing irregularities at AMH. Still under investigation, AMH closed its doors in March, 2002. Shortly thereafter, Dr. Proper and his wife, Beverlee, in cooperation with the government investigation, recorded a conversation they had with Dete-lich on April 17, 2002. In response to questions about the investigation, Detelich replied, “The best, safest place is to not know anything” and stated, “I’m not gonna know anything.”
Detelich was indicted in November, 2005. Following a trial, Detelich was convicted of health care fraud and mail fraud on March 2, 2007. He was subsequently sentenced to three years in prison and two years of supervised release and ordered to pay restitution to Highmark. This timely appeal followed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. We review evidentiary rulings made by the District Court for abuse of discretion. United States v. Kemp, 500 F.3d 257, 295 (3d Cir.2007). In reviewing whether a rational jury could have found elements of an offense beyond a reasonable doubt, we apply the same standard as the District Court, and, viewing the evidence in the light most favorable to the Government, will sustain the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Jones, 566 F.3d 353, 361 (3d Cir.2009). We exercise plenary review over the District Court’s ruling on dismissal of an indictment, accepting the District Court’s factual findings unless they are clearly erroneous. United States v. Nolan-Cooper, 155 F.3d 221, 229 (3d Cir.1998). Finally, we exercise plenary review in determining whether the District Court’s jury instructions misstated applicable law or improperly shifted the burden of proof. United States v. Zehrbach, 47 F.3d 1252, 1260 (3d Cir.1995); United States v. Korey, 472 F.3d 89, 93 (3d Cir. 2007). If there is no misstatement or improper shifting, then we review the instructions themselves for abuse of discretion. United States v. Hoffecker, 530 F.3d 137, 173-74 (3d Cir.2008).
III.
Detelich appeals his conviction arguing that the jury was improperly instructed on the issue of withdrawal, that there was insufficient evidence to establish beyond a reasonable doubt that he did not withdraw before November 3, 2000, that he was prejudiced by a duplicitous indictment, and that testimonial hearsay was admitted in violation of the Confrontation Clause. We will consider each argument in turn.
A.
1.
Detelich argues that the District Court misstated the law by instructing the jury *620that he was required to come forward with evidence that he completely withdrew from the fraudulent scheme, which he alleges misstates the law and improperly shifts the burden of proof from the government to Detelich.
The District Court instructed the jury that they must find that Detelich “completely withdrew from the scheme. A partial or temporary withdrawal is not sufficient.” (App.1112-13.) The Court continued, “If you find that the defendant produced evidence that he withdrew from this scheme before November 3, 2000, the government cannot rest on its proof that he participated at one time in the illegal scheme. In that circumstance, the government has the burden to prove beyond reasonable doubt that the defendant was participating in the scheme on or after November 3, 2000.” (App.1113-14.)
Detelich’s argument has two parts, neither of which are availing. First, Detelich argues that the District Court’s instruction that Detelich must have “completely withdrawn] from the scheme” was an incorrect statement of the law of this Circuit. It is not. We have repeatedly held that a defendant’s withdrawal from an illegal scheme must be “complete.” See United States v. Continental Group, Inc., 603 F.2d 444 (3d Cir.1979) (evidence must show defendant “in good faith disavowed and completely withdrew” from the conspiracy); United States v. U.S. Gypsum Co., 550 F.2d 115, 130 (3d Cir.1977) (withdrawal requires “some definite, decisive step, indicating a complete disassociation from the unlawful enterprise”); United States v. Chester, 407 F.2d 53, 55 (3d Cir. 1969) (defendant must make a “full, decisive, and complete” withdrawal from an illegal conspiracy).
Our opinion in United States v. Steele, 685 F.2d 793, 803 (3d Cir.1982), relied on by Detelich, is not to the contrary. In Steele, we held that evidence of withdrawal involved “typically either a full confession to the authorities or communication to his co-conspirators that he has abandoned the enterprise and its goals.” Id. at 803-04. Rather than modify the long-established rule that a defendant must provide evidence of complete withdrawal, Steele merely provides a non-exhaustive list of affirmative acts that we will typically find meet that burden. The crucial inquiry is whether the defendant has engaged in “[a]ffirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators.” United States v. Antar, 53 F.3d 568, 582 (3d Cir.1995). Any such act is evidence of complete withdrawal, and the defendant’s prima facie burden is thereby met.
Second, Detelich argues that the jury instruction improperly shifted the burden of proof from the government to the defendant. The plain language of the instruction belies this contention. The District Court clearly instructed the jury that Detelich only had to offer evidence of his complete withdrawal, not prove that he actually withdrew. The instructions left no doubt that if such evidence was presented, the government had the burden of proving beyond a reasonable doubt that Detelich had not withdrawn prior to November 3, 2000.
We therefore hold that the District Court did not misstate the law or improperly shift the burden of proof to Detelich on the issue of withdrawal.
2.
We also believe that there was sufficient evidence for a jury to find that Detelich participated in the scheme after November 3, 2000, thereby placing illegal conduct within the statute of limitations. *621This Court applies “a deferential standard in determining whether a jury’s verdict rests on sufficient evidence.” United States v. Ozcelik, 527 F.3d 88, 93 (3d Cir. 2008). Viewing the evidence in the light most favorable to the government, we will sustain a conviction if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). An appellant raising a claim of insufficiency of the evidence bears a “very heavy burden.” United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998) (internal quotations omitted).
A reasonable jury could have found that Detelich did not make a prima facie case of withdrawal by presenting evidence that he moved to California and instituted ethics training at AMH. A geographic relocation, by itself, does not necessarily imply complete disassociation with a criminal enterprise, particularly when Detelich did not tell any of his co-conspirators that he wished to stop AMH’s fraudulent billing practices and continued to reap financial benefits from the illegal scheme. A reasonable jury could perceive Detelich’s move to California and implementation of ethics reforms at AMH as merely an effort to deflect blame, not to withdraw from the scheme.
Moreover, even if Detelich established a prima facie case of withdrawal, we believe that a reasonable jury could have found that the government satisfied its burden of rebutting that evidence. The government presented evidence that Detelich retained influence over AMH while residing in California through his continued ownership of the practice, that he profited from the fraudulent billings as the owner of AMH, and that he knew about the ongoing improper billing practices and did nothing to stop them. A reasonable jury, presented with such evidence, could easily find that the government met its burden of proving beyond a reasonable doubt that Detelich did not withdraw from the scheme prior to November 3, 2000, even in the face of a prima facie ease of withdrawal.
We therefore hold that there was sufficient evidence for a jury to find beyond a reasonable doubt that Detelich did not withdraw from the scheme prior to November 3, 2000.
B.
Next, Detelich argues that the District Court erred in failing to strike the indictment as duplicitous. Duplicitous indictments may be stricken because of the risk that they will lead to guilty verdicts where twelve jurors believe a defendant is guilty but “who were not unanimous in their assessment of which act supported the verdict.” United States v. Beros, 833 F.2d 455, 462 (3d Cir.1987). However, a duplicitous indictment only requires reversal when its defects “conceal the specific charges, prevent the jury from deciding guilt or innocence with respect to a particular offense, exploit the risk of prejudicial evidentiary rulings, or endanger fair sentencing.” United States v. Haddy, 134 F.3d 542, 548 (3d Cir.1998). Because Detelich has failed to demonstrate that any alleged error in the indictment was prejudicial, we need not decide whether the indictment was duplicitous.
Detelich contends that he is prejudiced by the inclusion in Count 1 of the indictment of a variety of alleged conduct in support of the scheme to defraud High-mark — specifically the references to fee-splitting and upcoding. The District Court ruled at the end of the Government’s casein-chief that the Government had failed to produce enough evidence of upcoding within the limitations period and that fee-splitting was not itself criminal conduct absent *622proof of an underlying fraud. Thus, Dete-lich argues that evidence introduced in support of the later-excluded fee-splitting and upcoding theories of the scheme to defraud necessarily spilled over into the jury’s guilty verdict for billing Highmark for services not rendered.
We disagree. Without deciding whether the additional theories could have been prejudicial, we believe that any alleged prejudice to Detelich would have been cured by the District Court’s instructions to the jury, which clearly limited Count 1 to a scheme to defraud Highmark by submitting fraudulent claims for services not rendered. See United States v. Pungitore, 910 F.2d 1084, 1136 (3d Cir.1990) (holding jury instructions cured a duplicitous indictment where they “sufficiently informed the jury of its obligation to deliver a unanimous verdict as to a particular theory”). The jury was instructed:
The defendant is charged with a scheme to defraud a healthcare benefit program, that is, Highmark, under Count 1 of the indictment. The government alleges that the scheme involved the fraudulent submission of claims to Highmark for services which were not rendered. You must unanimously agree that the government has proved beyond a reasonable doubt an execution or attempted execution of the alleged scheme before returning a verdict of guilty as to Count 1. If you cannot unanimously agree as to which execution or attempted execution the defendant committed or participated in furthering the scheme, then you must return a verdict of not guilty with respect to Count 1.
(App.1103.) The jury was also instructed that it could not convict on the basis of evidence of upcoding (App.1114), that fee-splitting was not independently criminal conduct (App.1100), and that Count 2 for mail fraud required the jury to first find “that the government [had] prove[d] beyond a reasonable doubt the existence of a scheme to defraud.” (App.1105.)
We presume that juries understand and carefully follow instructions. Pungitore, 910 F.2d at 1136 (citing Francis v. Franklin, 471 U.S. 307, 324 n. 9, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985)). The instructions as given by the District Court clearly required the jury to unanimously agree that Detelich had engaged in or attempted to engage in a single execution of a scheme to defraud Highmark by submitting a fraudulent bill for services not rendered. The District Court thus guarded against the principle evil of a duplicitous indictment— the risk of a non-unanimous verdict. We will not assume that, because the jury was presented with evidence of other conduct in support of separate alleged executions of the scheme, it was incapable of compartmentalizing that information and finding Detelich guilty of a single execution as directed. See United States v. Urban, 404 F.3d 754, 776 (3d Cir.2005) (holding in multiple defendant context that a jury is “fully capable of compartmentalizing” evidence).
We therefore hold that, even if the indictment were duplicitous, the defendant was not prejudiced by any alleged duplicity, and we will affirm the District Court’s refusal to strike the indictment.
C.
Finally, Detelich claims that the District Court erred in two ways by admitting the recorded conversation between himself, Dr. Proper, and Beverlee Proper from April, 2002. First, Detelich argues that Mrs. Proper’s death in 2006 renders the admission of her statements a violation of his confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Second, Detelich argues that the conversation should have been excluded as irrelevant. We disagree on both points.
*623Detelich’s Confrontation Clause objection is resolved by our holding in United States v. Hendricks, 395 F.3d 173 (3d Cir.2005). In Hendricks we rejected the argument that statements made by an unavailable confidential informant and admitted via recording violated the Confrontation Clause. First, we held that where the statements were not introduced for the truth of the matter asserted, the admission presented no hearsay concerns under Fed. R.Evid. 801(a) and Crawford. Id. at 183. Second, we held that “the Confrontation Clause does not bar the introduction of the informant’s portions of the conversation as are reasonably required to place the defendant or coconspirator’s nontestimonial statements into context.” Id. at 184.
Both reasons permit the admission of Mrs. Proper’s recorded statements. Mrs. Proper’s statement was admitted to place Detelich’s statement in context, and not for its truth.2 Further, Detelich’s statements, unquestionably admissible as party admissions, were responses to a conversation and are therefore meaningless without the context of Mrs. Proper’s statements. Thus, Mrs. Proper’s statements are admissible for the reasons articulated in Hendricks.
Next, Detelich argues that the District Court abused its discretion in finding the recorded conversation relevant under Fed.R.Evid. 401. The District Court found that the recording was relevant to rebut Detelich’s claim that he withdrew from the fraudulent scheme when he moved to California. District Courts have great discretion to admit evidence under the broad definition of relevant evidence in Rule 401. See Moyer v. United Dominion Industries, Inc., 473 F.3d 532, 544-45 (3d Cir.2007). The rule itself states that any evidence that has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” is relevant. Fed.R.Evid. 401.
We agree that Detelich’s conversation with the Propers made it less likely that Detelich had withdrawn from the conspiracy to the extent it demonstrated an ongoing effort to conceal illegal activities. In addition, the conversation aided the government in impeaching Detelich’s contention that he was unaware of the illegal billing practices. Thus we cannot say that the District Court abused its considerable discretion in finding that the recording made it less likely that Detelich had withdrawn from the scheme.3
Because Beverlee Proper’s statement was relevant and was admissible under Hendricks, the District Court did not error in admitting it into evidence.
IV.
For the foregoing reasons, we will affirm Detelich’s conviction.
. The dates of these transactions are important because they occur within the five-year statute of limitations for health care and mail fraud. 18 U.S.C. § 3282(a). Detelich was not prosecuted for conduct prior to November 3, 2000.
. Detelich argues that the District Court erred in not giving a limiting instruction to ensure the jury did not consider Mrs. Proper's statement for its truth. However, we will not find plain error in the lack of a limiting instruction where the defendant did not request such an instruction at trial. See United States v. Rickey, 457 F.2d 1027, 1031 (3d Cir.1972). As Detelich did not seek a limiting instruction from the District Court, he is not entitled to claim error on this issue on appeal.
. Detelich also argues in passing that the recording was unfairly prejudicial under Rule 403. No argument is made as to why admitting the recording was unfair and we therefore have no basis on which to consider whether the District Court abused its discretion on this point.
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OPINION OF THE COURT
PER CURIAM.
Petitioner Luz M. Ceballos de Montoya, a native and citizen of Colombia, entered the United States in 1982 and has been a lawful permanent resident since 1990. In 1995, she was convicted, pursuant to a plea of guilty, of possession of cocaine with intent to distribute in violation of N.J. Stat. Ann. § 2C:35-5. As a result of this conviction, Ceballos is inadmissible under Immigration & Nationality Act (“INA”) § 212(a)(2)(A) and § 212(a)(2)(C). See 8 U.S.C. § 1182(a)(2)(A), (C).1 Because her plea of guilty and conviction predate the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Ceballos is eligible for a section 212(c) waiver of inadmissibility, 8 U.S.C. § 1182(e)(1994). See Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). She filed the necessary application and the Immigration Judge conducted a hearing on it, at which Ceballos testified. A daughter and granddaughter also testified on her behalf at her merits hearing.
Following the merits hearing, the IJ granted relief. In his Oral Decision, the IJ first set forth the legal standards, noting that, in evaluating a section 212(c) application, the agency must “balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented in his behalf’ to determine whether relief is in the best interests of the United States. Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978). Favorable factors include family ties within the United *632States, residence of long duration in this country, especially when the beginning of residence occurred at a young age, evidence of hardship to the alien and her family if removal occurs, service in this country’s armed forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, and proof of genuine rehabilitation if a criminal record exists. Id. at 584-85. Negative factors include additional significant violations of the immigration laws and the existence of a criminal record and its nature, recency, and seriousness. Id. at 584. Discretion generally will not be exercised favorably on behalf of an alien convicted of a serious criminal offense if the alien fails to come forward with evidence of unusual or outstanding countervailing equities, including proof of rehabilitation. Matter of Roberts, 20 I. & N. Dec. 294, 299 (BIA 1991); Matter of Buscemi, 19 I. & N. Dec. 628, 633 (BIA 1988).
In weighing the evidence, the IJ noted many positive equities, including that Ce-ballos has lived for a long time in the United States — throughout her work years — and she is now at retirement age and has several health problems. The IJ noted that she finds it necessary to rely on her children to help her, and she enjoys close relationships with them. On the negative side, Ceballos was convicted of a very serious crime. She took delivery in her home of two packages of cocaine and ultimately she pled guilty to a controlled substance offense, and was sentenced to three years probation. But, to her credit, Cebal-los’s conviction was almost thirteen years old, and she had been conviction-free since. The IJ credited Ceballos’s testimony that she understood that the crime was very serious. Accordingly, balancing the negative and the positive, the IJ concluded that Ceballos’s long tenure in the United States and her substantial family ties carried the day over the serious nature of her lone criminal conviction.
The Department of Homeland Security appealed to the Board of Immigration Appeals. Insofar as the facts were not in dispute, the Board conducted a de novo review of the IJ’s discretionary decision, as permitted by 8 G.F.R. § 1003.1(d)(3)(ii). The Board agreed with the IJ that there were numerous unusual and outstanding positive factors, including that Ceballos has lived and worked in the United States for more than twenty-five years, and has had lawful status for twenty years. She has a strong emotional attachment to her two adult daughters and grandchildren, and most of her grandchildren are U.S. citizens. She had a solid employment record and only stopped working recently because of health issues. Her health issues could make the transition back to Colombia difficult. The Board also noted that Ceballos has a son living in Colombia.
The Board agreed with the IJ that the conviction for cocaine trafficking was serious, stating: “There are few crimes more exploitative than cocaine trafficking, and fewer yet that are less conducive to the good order and happiness of the community.” Board Decision, at 3 (citing Matter of Y-L-, 23 I. & N. Dec. 270, 275-76 (A.G. 2002)). However, noting, as did the IJ, that discretion will not be exercised favorably on behalf of an alien convicted of a serious criminal offense if the alien fails to come forward with evidence of “unusual or outstanding countervailing equities, including proof of rehabilitation,” Roberts, 20 I. & N. Dec. at 299; Buscemi, 19 I. & N. Dec. at 633, the Board expressed doubts about whether Ceballos was rehabilitated. Those doubts were based on Ceballos’s own testimony. The Board observed that, throughout her testimony, Ceballos denied any involvement in the drug trafficking crime. Board Decision, at 3 (citing N.T., *63311/17/08, at 31, 52-53, 58-61). Her failure to accept responsibility was troubling to the Board in view of the evidence that supported her guilty plea (for example, a police statement which the government made use of on cross-examination).
Accordingly, the Board vacated the IJ’s decision and ordered Ceballos removed to Colombia based on the charges in the Notice to Appear. The Board reasoned that: “[i]n balancing the various factors in the respondent’s case, we take note of her unusual or outstanding equities,” but “when we weigh these equities against the adverse factor of her very serious criminal conviction involving drug trafficking and doubts as to her rehabilitation, it is our conclusion that a favorable exercise of discretion would not be in the best interest of the United States.” Board Decision, at 3. One Board Member dissented, stating: “Despite the force behind the majority’s discretionary denial, the Immigration Judge made the better overall ruling and should be upheld.” Id.
Ceballos has timely petitioned for review. She filed a motion for a stay of removal, which we granted. The Attorney General filed a motion to dismiss the petition for review for lack of subject matter jurisdiction, which is now before us, together with his brief on appeal, which reiterates the absence of jurisdiction argument. In her pro se brief on appeal, Ce-ballos assumes that we have jurisdiction, and relies on our precedent from before the passage of IIRIRA, including, for example, Tipu v. Immigration & Naturalization Sen., 20 F.3d 580, 582 (3d Cir. 1994) (finding jurisdiction under former jurisdiction statute, 8 U.S.C. § 1105a(a)(l)), in contending that we may reverse the Board’s discretionary decision if we find it to be arbitrary, irrational, or contrary to the law. See Appellant’s Informal Brief, Statement of Jurisdiction.
We will grant the Attorney General’s motion and dismiss the petition for review for lack of subject matter jurisdiction. Since the passage of IIRIRA, over ten years ago, the jurisdictional provision of the Immigration and Nationality Act has provided that “no court shall have jurisdiction to review ... any decision or action of the Attorney General ... the authority for which is specified under [relevant provisions of the INA] to be in the discretion of the Attorney General.” 8 U.S.C. § 1252(a)(2)(B)(ii). The decision to grant or deny relief pursuant to former section 212(c) is a discretionary one. St. Cyr, 533 U.S. at 325, 121 S.Ct. 2271. Therefore, if Ceballos challenges only the Board’s conclusion that she does not warrant the favorable exercise of discretion for relief under section 212(c), we must dismiss her petition for review for lack jurisdiction. See Avendano-Espejo v. Dep’t of Homeland Security, 448 F.3d 503, 505-06 (2d Cir.2006) (per curiam) (agency’s decision to grant or deny section 212(c) waiver constitutes discretionary decision which court of appeals lacks authority to review pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii)).
Ceballos contends in her brief on appeal that the Board failed to adequately weigh the equities in accordance with Matter of Marin, 16 I. & N. Dec. 581. She notes that, under our pre-IIRIRA precedent, we have reversed the Board when it has given insufficient consideration to certain evidence that, under Marin, must be adequately weighed. Her long tenure in the United States and strong family ties, she argues, constitute “unusual and outstanding equities,” Roberts, 20 I. & N. Dec. at 299. Moreover, the Board did not adequately credit her health problems (arthritis and short — term memory loss), or take into account that she will face substantial difficulty caring for herself in Colombia. With respect to whether she showed proof *634of rehabilitation, see id., the Board failed to properly weigh the age of her conviction, which is now over fifteen years old, and the fact that it is highly unlikely that a 65 year-old woman with health problems will engage in drug trafficking. In short, the Board ignored substantial evidence of complete rehabilitation. Citing the Seventh Circuit’s pre-IIRIRA decision in Guillenr-Garcia v. Immigration & Naturalization Sen., 999 F.2d 199 (7th Cir. 1993), and our pre-IIRIRA decision in Tipu, 20 F.3d at 580, Ceballos contends that it was improper for the Board to conclude that she was not rehabilitated simply because she refused to acknowledge guilt. “Consequently,” Ceballos concludes, “this Court can make a finding that the BIA abused its discretion.” (Appellant’s Attached Informal Brief at unnumbered page 8.)
We conclude that the Board’s determination regarding Ceballos’s section 212(c) application was wholly discretionary and, therefore, beyond our jurisdiction. Section 106 of the REAL ID Act of 2005 amended the jurisdictional statute to expressly provide for jurisdiction over “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), and thus we may consider whether the Board, in exercising its discretion, violated a rule of law or a provision of the Constitution. Papageor-giou v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005). But there is no mistaking the nature of Ceballos’s “abuse of discretion” argument; she plainly does not raise a constitutional claim or question of law.
Furthermore, we see no violation of a rule of law or the Constitution in the Board’s decision in Ceballos’s case. The role of the Board was to consider a host of factors, which it did. The Board’s role was to consider the seriousness of Ceballos’s crime, and whether there was evidence of “unusual or outstanding countervailing equities, including proof of rehabilitation,” Roberts, 20 I. & N. Dec. at 299; Buscemi, 19 I. & N. Dec. at 633. The Board properly considered the issue of rehabilitation, which the IJ had examined (to a lesser extent), and weighed whether or not Ce-ballos was rehabilitated with and against all other relevant factors in order to render an informed discretionary decision as to whether Ceballos should be permitted to stay. See Marin, 16 I. & N. Dec. at 584. We observe that the Board did not misrepresent the extent of Ceballos’s refusal to accept responsibility, and its concern about whether Ceballos had accepted responsibility for the crime was not improper. Cf. Guillen-Garcia, 999 F.2d at 205 (acknowledgment of culpability is important aspect of rehabilitation but it cannot be exclusive indicator used by BIA in determining whether it should favorably exercise discretion under section 212(c)). The Board has in the past considered lack of, or doubtful rehabilitation, as a negative factor, to be weighed against the sum of other factors deemed favorable. See Roberts, 20 I. & N. Dec. at 302-03.
In sum, to find jurisdiction in Ceballos’s case, we would have to mischaracterize either the Board’s decision or her arguments. This we cannot do. Here, the Board was engaging in a recalculation of the equities in declining to grant a discretionary waiver despite the IJ’s conclusion to the contrary. It was exercising its discretion by balancing the equities, including rehabilitation. We may agree with the dissenting Board member that the IJ made the better overall ruling in Cebal-los’s case, given her age, circumstances, and misconduct-free recent history, see Palacios-Torres v. Immigration & Naturalization Sen., 995 F.2d 96, 99 (7th Cir. 1993) (to prove rehabilitation, alien must demonstrate “reformation or restoration to a way of life where future criminal conduct is unlikely”), but our agreement with the *635IJ would lead inexorably to the conclusion that the Board abused its discretion, see Tipu, 20 F.3d at 582 (decision that is arbitrary, irrational or contrary to law is abuse of discretion), and that is precisely the determination we are not authorized to make since the passage of IIRIRA.
We will grant the Attorney General’s motion and dismiss the petition for review for lack of subject matter jurisdiction.
. Ceballos applied for admission as a returning lawful permanent resident in May of 2008 at Miami International Airport. The Department of Homeland Security (DHS) initiated removal proceedings against her on or about July 28, 2008, charging that she was inadmissible.
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Ronell Smith appeals, arguing that the District Court erred by denying his motion to withdraw his guilty plea which was made as part of a plea agreement. Because our opinion is wholly without prece-dential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will dismiss this appeal.
At the plea hearing, the District Court conducted a proper colloquy with Smith, inquiring about his understanding of the criminal charge and the applicable sen*636tencing range. The District Court also ensured that Smith understood that his sentence would be given later after review of the presentence report and other documents, and that he would not be able to appeal the sentence. The District Court then ascertained that Smith read the plea agreement with counsel, and confirmed that the plea agreement expressed the entire bargain between the government and himself. Smith attested that he signed the plea agreement voluntarily, free of any coercion. After this, Smith’s attorney stated that Smith signed the document knowingly and voluntarily. Finally, Smith declined the opportunity to ask any further questions. After all of this, Smith pleaded guilty to the charge of conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846. The District Court later sentenced Smith as a career offender to a term of 262 months imprisonment.
From all of this we conclude that, through his plea agreement, Smith knowingly and voluntarily waived his right to appeal. While we have jurisdiction, it has been our practice to refrain from exercising it except where it would result in a miscarriage of justice. U.S. v. Shedrick, 493 F.3d 292, 297 (3d Cir.2007). For the above stated reasons, we will dismiss this appeal.
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SILER, Circuit Judge
dissenting.
With all due respect to my colleagues, I respectfully dissent. In my opinion, when the district court considered all of the factors under 18 U.S.C. § 3553(a), and departed below the Guidelines range for 17 months, the court complied with the sentencing discretion under Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
I agree that the Guidelines range for this offense appears to be unduly harsh for such conduct by Calderon-Minchola. Moreover, had I been the district judge in the case, I might very well have rendered a different sentence. However, “[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id. at 51, 128 S.Ct. at 597.
As the majority declares, we have not adopted a rebuttable presumption of reasonableness for within-Guidelines sentences. See United States v. Cooper, 437 F.3d 324, 331-32 (3d Cir.2006). The majority goes on to say that a sentence below the Guidelines range also does not have a presumption of reasonableness. Nevertheless, I would follow the decision in United States v. Tomko, 562 F.3d 558, 573-74 (3d Cir.2009) (en banc), where this court found a downward variance from a Guidelines range of 12 to 18 months to probation and home detention was not an unreasonable sentence. Therefore, in this case, I would likewise find that the variance of 17 months below the Guidelines range was not unreasonable.
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OPINION OF THE COURT
PER CURIAM.
Alcibiades Rodriguez petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an Immigration Judge’s decision to deny his motion to reopen his immigration proceedings. We will deny the petition for review.
Rodriguez, a native and citizen of Nicaragua, came to the United States in 1985 with his parents and siblings when he was nine years old. In 1987, Rodriguez’s mother filed an application for political asylum. In 1996, when Rodriguez was twenty years old, the Immigration and Naturalization Service issued an Order to Show Cause and Notice of Hearing charging that he was subject to deportation for entering the United States without inspection. Rodriguez failed to appear for a scheduled hearing and, on August 15,1996, Immigration Judge Nicole Kim ordered his deportation in absentia.
Over eleven years later, Rodriguez filed a counseled motion to reopen the immigration proceedings and rescind the order entered in absentia. Rodriguez claimed that he did not receive written or oral notice of the August 15, 1996, hearing and that the Immigration Court and the Immigration and Naturalization Service sent correspondence to either his former address or an incomplete address.
Immigration Judge Frederic Leeds (“IJ”) found that the Order to Show Cause was personally served on Rodriguez on April 2, 1996, as evidenced by his signa-*615toe on the document, and that the document informed him that he must appear at a hearing on June 27, 1996. The IJ further found that, at the June 27, 1996, hearing, Immigration Judge Kim confirmed that Rodriguez received the Order to Show Cause, verified his name and address, and scheduled the August 15, 1996, hearing. The IJ concluded that Rodriguez’s affidavit in support of his motion to reopen conflicted with the evidence, which established that Rodriguez received the Order to Show Cause and appeared at the June 27, 1996, hearing. The IJ also stated that reopening was not warranted because Rodriguez failed to establish his prima fa-cie eligibility for cancellation of removal, the relief that he intended to seek should his proceedings be reopened.
The BIA dismissed Rodriguez’s appeal. The BIA rejected Rodriguez’s contention that the signature on the Order to Show Cause was not shown to belong to him. The BIA presumed that the Government properly performed its duties and did not forge or misrepresent Rodriguez’s signature and stated that Rodriguez did not provide any evidence indicating that the signature was not authentic. The BIA also rejected Rodriguez’s contention that the Order to Show Cause was defective because it was not read to him in Spanish. In addition, the BIA stated that the notice of the August 15, 1996, hearing reflected that it was personally served on Rodriguez and that he was orally informed of its contents. Finally, the BIA denied Rodriguez’s request to reopen the proceedings sua sponte, finding no exceptional circumstances and noting that Rodriguez did not use due diligence in seeking reopening. This petition for review followed.
We review the denial of a motion to reopen for abuse of discretion. Fadiga v. Attorney General, 488 F.3d 142, 153 (3d Cir.2007). Under this standard, we will uphold the BIA’s decision unless it is arbitrary, irrational, or contrary to law. Id.
Rodriguez argues in his brief that he did not sign the Order to Show Cause. As noted by the BIA, Rodriguez submitted no evidence showing that the signature on the Order to Show Cause is not his signature. Although Rodriguez asserts that his mother may have signed the Order to Show Cause, he did not submit a statement from his mother or any other evidence to this effect.
Rodriguez also argues that the signature on the Order to Show Cause is questionable because the documents submitted with his motion to reopen reflect that he spells his first name “Alciviades” and the Order to Show Cause spells his name “Alcibiades.” To the extent we have jurisdiction to entertain this argument,1 the fact that the signature matches the spelling in the Order to Show Cause is insufficient to establish that Rodriguez did not sign the document. Rodriguez used the first name Alcibiades in his filings with the BIA. See A.R. at 47.
Rodriguez further argues that the administrative record does not establish that he appeared at the June 27, 1996, hearing and received notice of the August 15,1996, hearing. Although Rodriguez is correct that the record does not contain a transcript of the June 27, 1996, hearing, the record reflects that the Immigration Judge verified service of the Order to Show Cause on that date. A.R. at 111. In addition, the Immigration Judge signed a *616notice on June 27, 1996, scheduling the August 15, 1996, hearing, which states:
This written notice was provided to the alien in English and in Spanish. Oral notice of the contents of this notice was given to the alien in his/her native language, or in a language he/she understands.
A.R. at 108. In light of these statements, we cannot conclude that the BIA abused its discretion in deciding that Rodriguez had notice of the August 15,1996, hearing. Other than Rodriguez’s own statement, the record contains no evidence to the contrary. We also agree with the Government that the fact that Rodriguez was not ordered deported in absentia on June 27, 1996, supports an inference that he was present on that date.2
Rodriguez also argues in the alternative that the BIA erred in failing to reopen the proceedings because the Order to Show Cause reflects that the officer did not read it to him in Spanish, as required by the regulations. In rejecting this argument, the BIA relied on In re S-M-, 22 I. & N. Dec. 49, 51 (BIA 1998), in which the BIA stated that the regulations require that the officer explain the contents of the Order to Show Cause, not that the officer read the entire document. Even if the Order to Show Cause was not explained to Rodriguez, he was not prejudiced by such a failure given the finding that he appeared at the June 27, 1996, hearing, where he was orally notified of the consequences of a failure to appear at the August 15, 1996, hearing. See In re Hernandez, 21 I. & N. Dec. 224, 227 (BIA 1996) (noting that the number of cases where prejudice results from a failure to explain the Order to Show Cause is limited).
Finally, as the Government correctly argues, we lack jurisdiction to review Rodriguez’s challenge to the BIA’s discretionary decision denying his request to sua sponte reopen his proceedings. Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir. 2003).
Accordingly, we will deny the petition for review.
. Rodriguez did not raise an argument in his appeal before the BIA based on the spelling of his name.
. Because the BIA did not abuse its discretion in concluding that Rodriguez received notice of the August 15, 1996, hearing at his initial hearing, it is unnecessary to address his arguments that the August 15, 1996, in absentia order and the June 27, 1996, hearing notice do not reflect his correct address. We note only that the June 27, 1996, hearing notice reflects the same address as the Order to Show Cause. Also, to the extent Rodriguez contends that he established "reasonable cause” for his failure to appear, the "reasonable cause” standard is inapplicable. See In re Cruz-Garcia, 22 I. & N. Dec. 1155, 1156 n. 1, 1159 (BIA 1999) ("reasonable cause” standard applied to notices of hearings prior to June 13, 1992, which were governed by section 242(b) of the Immigration and Nationality Act).
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OPINION OF THE COURT
FISHER, Circuit Judge.
Brent J. Detelich (“Detelich”) appeals his conviction of one count of knowingly and willfully executing or attempting to execute a scheme to defraud a health care benefit program in violation of 18 U.S.C. §§ 1347 and 2 and one count of mail fraud in furtherance of the scheme in violation of 18 U.S.C. §§ 1341 and 2. For the reasons below, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Detelich was accused by the Government of leading a scheme to defraud High-mark Blue Cross/Blue Shield (“High-mark”) through Advanced Medical and Holistic (“AMH”), the chiropractic practice he owned and operated in Hermitage, Pennsylvania. According to evidence offered at trial, Detelich put his scheme into effect shortly after opening a second AMH office in Niles, Ohio. While in Niles, Dete-lich would ask office assistants in the Hermitage office to “pull” treatment cards and bill Highmark for treatments supposedly given to certain Highmark-covered patients. Employees of AMH eventually learned that they were billing Highmark for procedures that the patients never received. Evidence was also presented at trial that AMH employees, at Detelich’s direction, engaged in “upcoding,” a process of billing Highmark for more expensive procedures than those rendered.
Patients with Highmark insurance who were regularly billed for services that were not rendered were referred to by AMH employees as being on the “hit list.” Hit list patients would receive reimbursement checks from Highmark, cash them, and bring the money to AMH or directly to Detelich. Many of these patients would also sign blank treatment cards to facilitate AMH’s billing for services not rendered. AMH and Detelich would frequently reimburse the hit list patients some percentage of this payment, a process known as “fee-splitting.”
Detelich offered evidence that during 1999 and 2000 he instituted operational reforms at AMH. Detelich required ethics training for all employees and retained a coding consultant to establish a billing program and an attorney to establish a written compliance program. Detelich moved to California in 2000, leaving Dr. Donald Proper in charge of day-to-day operations at AMH.
Employees at AMH continued to bill hit list patients after Detelich moved to California. Hit list patients brought the cash from reimbursement checks to AMH instead of to Detelich personally. For in*619stance, on or after November 3, 2000, AMH submitted eighteen bills to High-mark for treatments not rendered to Doro-they Fender, the mother of an AMH employee. One Highmark check for $800.00 was sent to Ms. Fender via U.S. mail on November 7, 2000.1 While Detelich remained in California, Dr. Proper wrote to Detelich informing him that the hit list billing was continuing, but Detelich took no additional action to stop the illegal billing practices.
In late 2000, the FBI began investigating billing irregularities at AMH. Still under investigation, AMH closed its doors in March, 2002. Shortly thereafter, Dr. Proper and his wife, Beverlee, in cooperation with the government investigation, recorded a conversation they had with Dete-lich on April 17, 2002. In response to questions about the investigation, Detelich replied, “The best, safest place is to not know anything” and stated, “I’m not gonna know anything.”
Detelich was indicted in November, 2005. Following a trial, Detelich was convicted of health care fraud and mail fraud on March 2, 2007. He was subsequently sentenced to three years in prison and two years of supervised release and ordered to pay restitution to Highmark. This timely appeal followed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. We review evidentiary rulings made by the District Court for abuse of discretion. United States v. Kemp, 500 F.3d 257, 295 (3d Cir.2007). In reviewing whether a rational jury could have found elements of an offense beyond a reasonable doubt, we apply the same standard as the District Court, and, viewing the evidence in the light most favorable to the Government, will sustain the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Jones, 566 F.3d 353, 361 (3d Cir.2009). We exercise plenary review over the District Court’s ruling on dismissal of an indictment, accepting the District Court’s factual findings unless they are clearly erroneous. United States v. Nolan-Cooper, 155 F.3d 221, 229 (3d Cir.1998). Finally, we exercise plenary review in determining whether the District Court’s jury instructions misstated applicable law or improperly shifted the burden of proof. United States v. Zehrbach, 47 F.3d 1252, 1260 (3d Cir.1995); United States v. Korey, 472 F.3d 89, 93 (3d Cir. 2007). If there is no misstatement or improper shifting, then we review the instructions themselves for abuse of discretion. United States v. Hoffecker, 530 F.3d 137, 173-74 (3d Cir.2008).
III.
Detelich appeals his conviction arguing that the jury was improperly instructed on the issue of withdrawal, that there was insufficient evidence to establish beyond a reasonable doubt that he did not withdraw before November 3, 2000, that he was prejudiced by a duplicitous indictment, and that testimonial hearsay was admitted in violation of the Confrontation Clause. We will consider each argument in turn.
A.
1.
Detelich argues that the District Court misstated the law by instructing the jury *620that he was required to come forward with evidence that he completely withdrew from the fraudulent scheme, which he alleges misstates the law and improperly shifts the burden of proof from the government to Detelich.
The District Court instructed the jury that they must find that Detelich “completely withdrew from the scheme. A partial or temporary withdrawal is not sufficient.” (App.1112-13.) The Court continued, “If you find that the defendant produced evidence that he withdrew from this scheme before November 3, 2000, the government cannot rest on its proof that he participated at one time in the illegal scheme. In that circumstance, the government has the burden to prove beyond reasonable doubt that the defendant was participating in the scheme on or after November 3, 2000.” (App.1113-14.)
Detelich’s argument has two parts, neither of which are availing. First, Detelich argues that the District Court’s instruction that Detelich must have “completely withdrawn] from the scheme” was an incorrect statement of the law of this Circuit. It is not. We have repeatedly held that a defendant’s withdrawal from an illegal scheme must be “complete.” See United States v. Continental Group, Inc., 603 F.2d 444 (3d Cir.1979) (evidence must show defendant “in good faith disavowed and completely withdrew” from the conspiracy); United States v. U.S. Gypsum Co., 550 F.2d 115, 130 (3d Cir.1977) (withdrawal requires “some definite, decisive step, indicating a complete disassociation from the unlawful enterprise”); United States v. Chester, 407 F.2d 53, 55 (3d Cir. 1969) (defendant must make a “full, decisive, and complete” withdrawal from an illegal conspiracy).
Our opinion in United States v. Steele, 685 F.2d 793, 803 (3d Cir.1982), relied on by Detelich, is not to the contrary. In Steele, we held that evidence of withdrawal involved “typically either a full confession to the authorities or communication to his co-conspirators that he has abandoned the enterprise and its goals.” Id. at 803-04. Rather than modify the long-established rule that a defendant must provide evidence of complete withdrawal, Steele merely provides a non-exhaustive list of affirmative acts that we will typically find meet that burden. The crucial inquiry is whether the defendant has engaged in “[a]ffirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators.” United States v. Antar, 53 F.3d 568, 582 (3d Cir.1995). Any such act is evidence of complete withdrawal, and the defendant’s prima facie burden is thereby met.
Second, Detelich argues that the jury instruction improperly shifted the burden of proof from the government to the defendant. The plain language of the instruction belies this contention. The District Court clearly instructed the jury that Detelich only had to offer evidence of his complete withdrawal, not prove that he actually withdrew. The instructions left no doubt that if such evidence was presented, the government had the burden of proving beyond a reasonable doubt that Detelich had not withdrawn prior to November 3, 2000.
We therefore hold that the District Court did not misstate the law or improperly shift the burden of proof to Detelich on the issue of withdrawal.
2.
We also believe that there was sufficient evidence for a jury to find that Detelich participated in the scheme after November 3, 2000, thereby placing illegal conduct within the statute of limitations. *621This Court applies “a deferential standard in determining whether a jury’s verdict rests on sufficient evidence.” United States v. Ozcelik, 527 F.3d 88, 93 (3d Cir. 2008). Viewing the evidence in the light most favorable to the government, we will sustain a conviction if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). An appellant raising a claim of insufficiency of the evidence bears a “very heavy burden.” United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998) (internal quotations omitted).
A reasonable jury could have found that Detelich did not make a prima facie case of withdrawal by presenting evidence that he moved to California and instituted ethics training at AMH. A geographic relocation, by itself, does not necessarily imply complete disassociation with a criminal enterprise, particularly when Detelich did not tell any of his co-conspirators that he wished to stop AMH’s fraudulent billing practices and continued to reap financial benefits from the illegal scheme. A reasonable jury could perceive Detelich’s move to California and implementation of ethics reforms at AMH as merely an effort to deflect blame, not to withdraw from the scheme.
Moreover, even if Detelich established a prima facie case of withdrawal, we believe that a reasonable jury could have found that the government satisfied its burden of rebutting that evidence. The government presented evidence that Detelich retained influence over AMH while residing in California through his continued ownership of the practice, that he profited from the fraudulent billings as the owner of AMH, and that he knew about the ongoing improper billing practices and did nothing to stop them. A reasonable jury, presented with such evidence, could easily find that the government met its burden of proving beyond a reasonable doubt that Detelich did not withdraw from the scheme prior to November 3, 2000, even in the face of a prima facie ease of withdrawal.
We therefore hold that there was sufficient evidence for a jury to find beyond a reasonable doubt that Detelich did not withdraw from the scheme prior to November 3, 2000.
B.
Next, Detelich argues that the District Court erred in failing to strike the indictment as duplicitous. Duplicitous indictments may be stricken because of the risk that they will lead to guilty verdicts where twelve jurors believe a defendant is guilty but “who were not unanimous in their assessment of which act supported the verdict.” United States v. Beros, 833 F.2d 455, 462 (3d Cir.1987). However, a duplicitous indictment only requires reversal when its defects “conceal the specific charges, prevent the jury from deciding guilt or innocence with respect to a particular offense, exploit the risk of prejudicial evidentiary rulings, or endanger fair sentencing.” United States v. Haddy, 134 F.3d 542, 548 (3d Cir.1998). Because Detelich has failed to demonstrate that any alleged error in the indictment was prejudicial, we need not decide whether the indictment was duplicitous.
Detelich contends that he is prejudiced by the inclusion in Count 1 of the indictment of a variety of alleged conduct in support of the scheme to defraud High-mark — specifically the references to fee-splitting and upcoding. The District Court ruled at the end of the Government’s casein-chief that the Government had failed to produce enough evidence of upcoding within the limitations period and that fee-splitting was not itself criminal conduct absent *622proof of an underlying fraud. Thus, Dete-lich argues that evidence introduced in support of the later-excluded fee-splitting and upcoding theories of the scheme to defraud necessarily spilled over into the jury’s guilty verdict for billing Highmark for services not rendered.
We disagree. Without deciding whether the additional theories could have been prejudicial, we believe that any alleged prejudice to Detelich would have been cured by the District Court’s instructions to the jury, which clearly limited Count 1 to a scheme to defraud Highmark by submitting fraudulent claims for services not rendered. See United States v. Pungitore, 910 F.2d 1084, 1136 (3d Cir.1990) (holding jury instructions cured a duplicitous indictment where they “sufficiently informed the jury of its obligation to deliver a unanimous verdict as to a particular theory”). The jury was instructed:
The defendant is charged with a scheme to defraud a healthcare benefit program, that is, Highmark, under Count 1 of the indictment. The government alleges that the scheme involved the fraudulent submission of claims to Highmark for services which were not rendered. You must unanimously agree that the government has proved beyond a reasonable doubt an execution or attempted execution of the alleged scheme before returning a verdict of guilty as to Count 1. If you cannot unanimously agree as to which execution or attempted execution the defendant committed or participated in furthering the scheme, then you must return a verdict of not guilty with respect to Count 1.
(App.1103.) The jury was also instructed that it could not convict on the basis of evidence of upcoding (App.1114), that fee-splitting was not independently criminal conduct (App.1100), and that Count 2 for mail fraud required the jury to first find “that the government [had] prove[d] beyond a reasonable doubt the existence of a scheme to defraud.” (App.1105.)
We presume that juries understand and carefully follow instructions. Pungitore, 910 F.2d at 1136 (citing Francis v. Franklin, 471 U.S. 307, 324 n. 9, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985)). The instructions as given by the District Court clearly required the jury to unanimously agree that Detelich had engaged in or attempted to engage in a single execution of a scheme to defraud Highmark by submitting a fraudulent bill for services not rendered. The District Court thus guarded against the principle evil of a duplicitous indictment— the risk of a non-unanimous verdict. We will not assume that, because the jury was presented with evidence of other conduct in support of separate alleged executions of the scheme, it was incapable of compartmentalizing that information and finding Detelich guilty of a single execution as directed. See United States v. Urban, 404 F.3d 754, 776 (3d Cir.2005) (holding in multiple defendant context that a jury is “fully capable of compartmentalizing” evidence).
We therefore hold that, even if the indictment were duplicitous, the defendant was not prejudiced by any alleged duplicity, and we will affirm the District Court’s refusal to strike the indictment.
C.
Finally, Detelich claims that the District Court erred in two ways by admitting the recorded conversation between himself, Dr. Proper, and Beverlee Proper from April, 2002. First, Detelich argues that Mrs. Proper’s death in 2006 renders the admission of her statements a violation of his confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Second, Detelich argues that the conversation should have been excluded as irrelevant. We disagree on both points.
*623Detelich’s Confrontation Clause objection is resolved by our holding in United States v. Hendricks, 395 F.3d 173 (3d Cir.2005). In Hendricks we rejected the argument that statements made by an unavailable confidential informant and admitted via recording violated the Confrontation Clause. First, we held that where the statements were not introduced for the truth of the matter asserted, the admission presented no hearsay concerns under Fed. R.Evid. 801(a) and Crawford. Id. at 183. Second, we held that “the Confrontation Clause does not bar the introduction of the informant’s portions of the conversation as are reasonably required to place the defendant or coconspirator’s nontestimonial statements into context.” Id. at 184.
Both reasons permit the admission of Mrs. Proper’s recorded statements. Mrs. Proper’s statement was admitted to place Detelich’s statement in context, and not for its truth.2 Further, Detelich’s statements, unquestionably admissible as party admissions, were responses to a conversation and are therefore meaningless without the context of Mrs. Proper’s statements. Thus, Mrs. Proper’s statements are admissible for the reasons articulated in Hendricks.
Next, Detelich argues that the District Court abused its discretion in finding the recorded conversation relevant under Fed.R.Evid. 401. The District Court found that the recording was relevant to rebut Detelich’s claim that he withdrew from the fraudulent scheme when he moved to California. District Courts have great discretion to admit evidence under the broad definition of relevant evidence in Rule 401. See Moyer v. United Dominion Industries, Inc., 473 F.3d 532, 544-45 (3d Cir.2007). The rule itself states that any evidence that has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” is relevant. Fed.R.Evid. 401.
We agree that Detelich’s conversation with the Propers made it less likely that Detelich had withdrawn from the conspiracy to the extent it demonstrated an ongoing effort to conceal illegal activities. In addition, the conversation aided the government in impeaching Detelich’s contention that he was unaware of the illegal billing practices. Thus we cannot say that the District Court abused its considerable discretion in finding that the recording made it less likely that Detelich had withdrawn from the scheme.3
Because Beverlee Proper’s statement was relevant and was admissible under Hendricks, the District Court did not error in admitting it into evidence.
IV.
For the foregoing reasons, we will affirm Detelich’s conviction.
. The dates of these transactions are important because they occur within the five-year statute of limitations for health care and mail fraud. 18 U.S.C. § 3282(a). Detelich was not prosecuted for conduct prior to November 3, 2000.
. Detelich argues that the District Court erred in not giving a limiting instruction to ensure the jury did not consider Mrs. Proper's statement for its truth. However, we will not find plain error in the lack of a limiting instruction where the defendant did not request such an instruction at trial. See United States v. Rickey, 457 F.2d 1027, 1031 (3d Cir.1972). As Detelich did not seek a limiting instruction from the District Court, he is not entitled to claim error on this issue on appeal.
. Detelich also argues in passing that the recording was unfairly prejudicial under Rule 403. No argument is made as to why admitting the recording was unfair and we therefore have no basis on which to consider whether the District Court abused its discretion on this point.
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OPINION OF THE COURT
PER CURIAM.
Appellant John A. Hartmann appeals from the United States Tax Court’s order and decision granting the Commissioner of Internal Revenue’s (“IRS”) motion for summary judgment in this action to collect unpaid taxes. Because Hartmann’s arguments on appeal do not demonstrate the existence of a genuine issue of material fact, or that the IRS is not entitled to judgment as a matter of law, we will affirm the order of the Tax Court.
I.
After a collection due process (“CDP”) hearing at its Office of Appeals, the IRS issued a Notice of Determination approving a proposed levy upon Hartmann’s property to collect unpaid taxes for the *6252001 tax year.1 Hartmann timely challenged that determination before the Tax Court. The IRS moved for summary judgment. In December 2008, the Tax Court entered an order and decision granting the IRS’s motion for summary judgment and sustaining the determination made by the IRS. Hartmann timely appealed from that order.2
II.
The Tax Court had jurisdiction under 26 U.S.C. § 6330(d)(1), and we have jurisdiction under 26 U.S.C. § 7482(a)(1). We exercise plenary review of the Tax Court’s order granting the IRS’s summary judgment motion. See Conn. Gen. Life Ins. Co. v. Comm’r, 177 F.3d 136, 143 (3d Cir. 1999). Like Rule 56(c) of the Federal Rules of Civil Procedure, Rule 121(b) of the Tax Court Rules of Practice and Procedure provides that summary judgment may be granted “if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law.” Craig v. Comm’r, 119 T.C. 252, 259-60 (2002).
III.
Hartmann makes two arguments to demonstrate that the Tax Court erred in granting the IRS’s summary judgment motion, both of which were rejected by the Tax Court. First, Hartmann argues that the Settlement Officer abused his discretion when he rejected Hartmann’s offer-in-compromise as an alternative settlement agreement. Second, Hartmann argues that the Office of Appeals abused its discretion “because the same agent conducted both a CDP hearing and reviewed an offer in compromise.” As the Tax Court correctly found, neither argument has merit, and thus neither precludes the entry of summary judgment in favor of the IRS.
Specifically, we agree with the Tax Court that the Settlement Officer did not abuse his discretion in rejecting Hartmann’s offer-in-compromise because Hartmann had not timely filed his 2006 income tax return at the time of the offer, as was required for his offer-in-compromise to be considered. Cf. Christopher Cross, Inc. v. United States, 461 F.3d 610, 613 (5th Cir. 2006) (“[t]he failure to timely pay owed taxes is a perfectly reasonable basis for rejecting an offer in compromise relating to other unpaid taxes”). While Hartmann argues that his providing the Settlement Officer with a K-13 for the 2006 return constituted “substantial compliance,” we find no basis to substitute Hartmann’s self-serving standard for the documentation re*626quested by the Settlement Officer (proof of estimated payments for the 2006 tax year, supporting documentation for the Form 433-A Collection Information Statement, etc.).
We also agree with the Tax Court’s determination that it was not improper for the same IRS agent to both conduct the CDP hearing and review the offer-in-compromise. Hartmann has not supplied any authority for his argument to the contrary. More importantly, though, section 6330(b)(3) provides that a CDP hearing “shall be conducted by an officer or employee who has had no prior involvement with respect to the unpaid tax specified” in the notice of intent to levy, and there is no indication in the record that the Settlement Officer had any such “prior involvement.”
Accordingly, we will affirm the Tax Court’s entry of summary judgment in favor of the IRS.
.CDP hearings are informal proceedings that provide a delinquent taxpayer with an opportunity to be heard before the IRS can levy upon his or her property in order to satisfy outstanding tax liabilities. See generally 26 U.S.C. § 6330. During the hearing, the taxpayer is permitted, inter alia, to propose collection alternatives such as a settlement or payment schedule, and the Settlement Officer ultimately must determine whether the proposed levy "balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary." Id. at § 6330(c)(3). The Settlement Officer’s decision generally is reviewable by the Tax Court for abuse of discretion. See Kindred v. Comm’r, 454 F.3d 688, 694 (7th Cir.2006).
. The Tax Court also denied Hartmann’s motion to vacate and revise its order granting summary judgment. Hartmann does not appeal from that decision.
. "A Schedule K-l is used as part of the tax return to report the partner's share of income, credits, deductions and other items resulting from the partnership.” Hansen v. Comm’r, 471 F.3d 1021, 1026 n. 6 (9th Cir. 2006).
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OPINION OF THE COURT
PER CURIAM.
Vanessa Elkaslasy petitions for review of an order of the Board of Immigration *629Appeals (“BIA”) dismissing her appeal of an Immigration Judge’s decision denying her motion to reopen her immigration proceedings. We will deny the petition for review.
Elkaslasy is a native and citizen of the United Kingdom. She came to the United States in 1983 as a visitor. In 1990, the Immigration and Naturalization Service issued an Order to Show Cause charging that Elkaslasy was subject to deportation because she stayed in the United States longer than permitted. In 1991, an Immigration Judge found, based on Elkaslasy’s admissions, that she was deportable as charged. Elkaslasy applied for, and was granted, voluntary departure. Elkaslasy waived an appeal of the Immigration Judge’s decision to the BIA. She had planned to attend a visa interview at the American Embassy in London, which was scheduled after her husband, a lawful permanent resident of the United States, filed a visa petition on her behalf. Elkaslasy, however, did not depart, and she and her husband divorced in 1995.
In 2006, U.S. Immigration and Customs Enforcement issued a warrant for Elkasla-sy’s removal or deportation from the United States. Through counsel, Elkaslasy then filed a motion to reopen the proceedings. She asserted that her United States citizen daughter, who had turned 21 years old, could file a visa petition on her behalf. Elkaslasy also argued that her deportation order is void because the Immigration Judge lacked jurisdiction to conduct her deportation proceedings and grant voluntary departure. Elkaslasy explained that she had left the United States after her initial entry and was paroled back into the United States. She maintained that, as a parolee, she should have been placed into exclusion proceedings and that the deportation order is thus a nullity.1
The Immigration Judge (“IJ”) rejected Elkaslasy’s argument, noting that she had failed to explain why she had admitted the allegations in the Order to Show Cause and that she did not allege ineffective assistance of counsel. The IJ also ruled that Elkaslasy’s motion was “grossly late.” A.R. at 60. The IJ explained that, under the regulations, Elkaslasy had until September 30, 1996, to file her motion, and that her motion was approximately 10 years late. The IJ further stated that the exceptions to the time limitation did not apply, that there was no exception for an adjustment of status, and that Elkaslasy did not contend that the time limitation should be tolled. Finally, the IJ noted that Elkaslasy had not established that she was prima facie eligible for an adjustment of status. The IJ thus denied the motion to reopen and Elkaslasy’s accompanying motions to terminate the proceedings and stay her removal.
On appeal, the BIA adopted and affirmed the IJ’s decision denying the motion as untimely filed. The BIA was “not persuaded that the Immigration Judge’s 1991 decision ha[d] been shown to be void *630‘on its face,’ rather than arguably voidable, particularly considering that the Immigration Judge had jurisdiction over both the subject matter and the parties in the 1991 proceedings.” A.R. at 2. The BIA noted that Elkaslasy did not dispute that she had admitted the factual allegations in the Order to Show Cause, conceded her deporta-bility, and sought voluntary departure, which would not have been available in exclusion proceedings. The BIA also denied Elkaslasy’s request that the BIA use its discretionary authority to reopen the proceedings sua sponte, noting that there was no evidence that a visa petition had been filed on her behalf and that she did not take steps over the last 15 years to raise the issues in her motion until she was served with a notice to appear for deportation. This petition for review followed.
We review the denial of a motion to reopen for abuse of discretion. Fadiga v. Attorney General, 488 F.3d 142, 153 (3d Cir.2007). Under this standard, we will uphold the BIA’s decision unless it is arbitrary, irrational, or contrary to law. Id.
The BIA did not abuse its discretion in adopting and affirming the IJ’s decision denying the motion to reopen as untimely filed. As noted by the BIA and IJ, Elkas-lasy filed her motion approximately ten years after the time period to file a motion to reopen expired. See 8 C.F.R. § 1003.23(b)(1). She did not show that tolling or an exception to the time limitation applies. Elkaslasy has cited no authority — and we have found none — supporting her argument that she may bypass the time requirement for filing a motion to reopen and collaterally challenge her deportation order based on a contention that she should have been placed in exclusion proceedings. Even assuming Elkaslasy is able to challenge the Immigration Judge’s subject matter jurisdiction at this late date, the BIA did not err in concluding that the Immigration Judge had jurisdiction over the subject matter in the 1991 proceedings. See 8 C.F.R. § 3.10 (1991) (reflecting power of immigration judge to conduct exclusion and deportation hearings). To the extent Elkaslasy otherwise seeks review of the deportation order, as noted by the Government, we lack jurisdiction to review the Immigration Judge’s 1991 decision because Elkaslasy did not appeal that decision to the BIA, see 8 U.S.C. § 1252(d)(1), nor did she file a timely petition for review with respect to that decision. See Stone v. I.N.S., 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995).
Accordingly, we will deny the petition for review.2
. Elkaslasy submitted evidence that she was paroled into the United States after a trip to St. Maarten. A.R. at 75, 79-80. A person paroled into the United States before the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) normally was placed into exclusion rather than deportation proceedings. Dimen-ski v. INS, 275 F.3d 574, 576 (7th Cir.2001); see also Leng May Ma v. Barber, 357 U.S. 185, 187, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) (noting distinction between exclusion and deportation proceedings). An alien in deportation proceedings, however, was entitled to procedural protections and substantive rights not available in exclusion proceedings, including voluntary departure. Ramirez-Dura-zo v. I.N.S., 794 F.2d 491, 496 (9th Cir.1986). IIRIRA eliminated distinctions between deportation and exclusion proceedings. DeSou-sa v. Reno, 190 F.3d 175, 179 n. 3 (3d Cir. 1999).
. The Government’s motion for summary af-firmance of the BIA’s decision is denied.
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OPINION OF THE COURT
PER CURIAM.
Petitioner Luz M. Ceballos de Montoya, a native and citizen of Colombia, entered the United States in 1982 and has been a lawful permanent resident since 1990. In 1995, she was convicted, pursuant to a plea of guilty, of possession of cocaine with intent to distribute in violation of N.J. Stat. Ann. § 2C:35-5. As a result of this conviction, Ceballos is inadmissible under Immigration & Nationality Act (“INA”) § 212(a)(2)(A) and § 212(a)(2)(C). See 8 U.S.C. § 1182(a)(2)(A), (C).1 Because her plea of guilty and conviction predate the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Ceballos is eligible for a section 212(c) waiver of inadmissibility, 8 U.S.C. § 1182(e)(1994). See Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). She filed the necessary application and the Immigration Judge conducted a hearing on it, at which Ceballos testified. A daughter and granddaughter also testified on her behalf at her merits hearing.
Following the merits hearing, the IJ granted relief. In his Oral Decision, the IJ first set forth the legal standards, noting that, in evaluating a section 212(c) application, the agency must “balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented in his behalf’ to determine whether relief is in the best interests of the United States. Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978). Favorable factors include family ties within the United *632States, residence of long duration in this country, especially when the beginning of residence occurred at a young age, evidence of hardship to the alien and her family if removal occurs, service in this country’s armed forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, and proof of genuine rehabilitation if a criminal record exists. Id. at 584-85. Negative factors include additional significant violations of the immigration laws and the existence of a criminal record and its nature, recency, and seriousness. Id. at 584. Discretion generally will not be exercised favorably on behalf of an alien convicted of a serious criminal offense if the alien fails to come forward with evidence of unusual or outstanding countervailing equities, including proof of rehabilitation. Matter of Roberts, 20 I. & N. Dec. 294, 299 (BIA 1991); Matter of Buscemi, 19 I. & N. Dec. 628, 633 (BIA 1988).
In weighing the evidence, the IJ noted many positive equities, including that Ce-ballos has lived for a long time in the United States — throughout her work years — and she is now at retirement age and has several health problems. The IJ noted that she finds it necessary to rely on her children to help her, and she enjoys close relationships with them. On the negative side, Ceballos was convicted of a very serious crime. She took delivery in her home of two packages of cocaine and ultimately she pled guilty to a controlled substance offense, and was sentenced to three years probation. But, to her credit, Cebal-los’s conviction was almost thirteen years old, and she had been conviction-free since. The IJ credited Ceballos’s testimony that she understood that the crime was very serious. Accordingly, balancing the negative and the positive, the IJ concluded that Ceballos’s long tenure in the United States and her substantial family ties carried the day over the serious nature of her lone criminal conviction.
The Department of Homeland Security appealed to the Board of Immigration Appeals. Insofar as the facts were not in dispute, the Board conducted a de novo review of the IJ’s discretionary decision, as permitted by 8 G.F.R. § 1003.1(d)(3)(ii). The Board agreed with the IJ that there were numerous unusual and outstanding positive factors, including that Ceballos has lived and worked in the United States for more than twenty-five years, and has had lawful status for twenty years. She has a strong emotional attachment to her two adult daughters and grandchildren, and most of her grandchildren are U.S. citizens. She had a solid employment record and only stopped working recently because of health issues. Her health issues could make the transition back to Colombia difficult. The Board also noted that Ceballos has a son living in Colombia.
The Board agreed with the IJ that the conviction for cocaine trafficking was serious, stating: “There are few crimes more exploitative than cocaine trafficking, and fewer yet that are less conducive to the good order and happiness of the community.” Board Decision, at 3 (citing Matter of Y-L-, 23 I. & N. Dec. 270, 275-76 (A.G. 2002)). However, noting, as did the IJ, that discretion will not be exercised favorably on behalf of an alien convicted of a serious criminal offense if the alien fails to come forward with evidence of “unusual or outstanding countervailing equities, including proof of rehabilitation,” Roberts, 20 I. & N. Dec. at 299; Buscemi, 19 I. & N. Dec. at 633, the Board expressed doubts about whether Ceballos was rehabilitated. Those doubts were based on Ceballos’s own testimony. The Board observed that, throughout her testimony, Ceballos denied any involvement in the drug trafficking crime. Board Decision, at 3 (citing N.T., *63311/17/08, at 31, 52-53, 58-61). Her failure to accept responsibility was troubling to the Board in view of the evidence that supported her guilty plea (for example, a police statement which the government made use of on cross-examination).
Accordingly, the Board vacated the IJ’s decision and ordered Ceballos removed to Colombia based on the charges in the Notice to Appear. The Board reasoned that: “[i]n balancing the various factors in the respondent’s case, we take note of her unusual or outstanding equities,” but “when we weigh these equities against the adverse factor of her very serious criminal conviction involving drug trafficking and doubts as to her rehabilitation, it is our conclusion that a favorable exercise of discretion would not be in the best interest of the United States.” Board Decision, at 3. One Board Member dissented, stating: “Despite the force behind the majority’s discretionary denial, the Immigration Judge made the better overall ruling and should be upheld.” Id.
Ceballos has timely petitioned for review. She filed a motion for a stay of removal, which we granted. The Attorney General filed a motion to dismiss the petition for review for lack of subject matter jurisdiction, which is now before us, together with his brief on appeal, which reiterates the absence of jurisdiction argument. In her pro se brief on appeal, Ce-ballos assumes that we have jurisdiction, and relies on our precedent from before the passage of IIRIRA, including, for example, Tipu v. Immigration & Naturalization Sen., 20 F.3d 580, 582 (3d Cir. 1994) (finding jurisdiction under former jurisdiction statute, 8 U.S.C. § 1105a(a)(l)), in contending that we may reverse the Board’s discretionary decision if we find it to be arbitrary, irrational, or contrary to the law. See Appellant’s Informal Brief, Statement of Jurisdiction.
We will grant the Attorney General’s motion and dismiss the petition for review for lack of subject matter jurisdiction. Since the passage of IIRIRA, over ten years ago, the jurisdictional provision of the Immigration and Nationality Act has provided that “no court shall have jurisdiction to review ... any decision or action of the Attorney General ... the authority for which is specified under [relevant provisions of the INA] to be in the discretion of the Attorney General.” 8 U.S.C. § 1252(a)(2)(B)(ii). The decision to grant or deny relief pursuant to former section 212(c) is a discretionary one. St. Cyr, 533 U.S. at 325, 121 S.Ct. 2271. Therefore, if Ceballos challenges only the Board’s conclusion that she does not warrant the favorable exercise of discretion for relief under section 212(c), we must dismiss her petition for review for lack jurisdiction. See Avendano-Espejo v. Dep’t of Homeland Security, 448 F.3d 503, 505-06 (2d Cir.2006) (per curiam) (agency’s decision to grant or deny section 212(c) waiver constitutes discretionary decision which court of appeals lacks authority to review pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii)).
Ceballos contends in her brief on appeal that the Board failed to adequately weigh the equities in accordance with Matter of Marin, 16 I. & N. Dec. 581. She notes that, under our pre-IIRIRA precedent, we have reversed the Board when it has given insufficient consideration to certain evidence that, under Marin, must be adequately weighed. Her long tenure in the United States and strong family ties, she argues, constitute “unusual and outstanding equities,” Roberts, 20 I. & N. Dec. at 299. Moreover, the Board did not adequately credit her health problems (arthritis and short — term memory loss), or take into account that she will face substantial difficulty caring for herself in Colombia. With respect to whether she showed proof *634of rehabilitation, see id., the Board failed to properly weigh the age of her conviction, which is now over fifteen years old, and the fact that it is highly unlikely that a 65 year-old woman with health problems will engage in drug trafficking. In short, the Board ignored substantial evidence of complete rehabilitation. Citing the Seventh Circuit’s pre-IIRIRA decision in Guillenr-Garcia v. Immigration & Naturalization Sen., 999 F.2d 199 (7th Cir. 1993), and our pre-IIRIRA decision in Tipu, 20 F.3d at 580, Ceballos contends that it was improper for the Board to conclude that she was not rehabilitated simply because she refused to acknowledge guilt. “Consequently,” Ceballos concludes, “this Court can make a finding that the BIA abused its discretion.” (Appellant’s Attached Informal Brief at unnumbered page 8.)
We conclude that the Board’s determination regarding Ceballos’s section 212(c) application was wholly discretionary and, therefore, beyond our jurisdiction. Section 106 of the REAL ID Act of 2005 amended the jurisdictional statute to expressly provide for jurisdiction over “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), and thus we may consider whether the Board, in exercising its discretion, violated a rule of law or a provision of the Constitution. Papageor-giou v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005). But there is no mistaking the nature of Ceballos’s “abuse of discretion” argument; she plainly does not raise a constitutional claim or question of law.
Furthermore, we see no violation of a rule of law or the Constitution in the Board’s decision in Ceballos’s case. The role of the Board was to consider a host of factors, which it did. The Board’s role was to consider the seriousness of Ceballos’s crime, and whether there was evidence of “unusual or outstanding countervailing equities, including proof of rehabilitation,” Roberts, 20 I. & N. Dec. at 299; Buscemi, 19 I. & N. Dec. at 633. The Board properly considered the issue of rehabilitation, which the IJ had examined (to a lesser extent), and weighed whether or not Ce-ballos was rehabilitated with and against all other relevant factors in order to render an informed discretionary decision as to whether Ceballos should be permitted to stay. See Marin, 16 I. & N. Dec. at 584. We observe that the Board did not misrepresent the extent of Ceballos’s refusal to accept responsibility, and its concern about whether Ceballos had accepted responsibility for the crime was not improper. Cf. Guillen-Garcia, 999 F.2d at 205 (acknowledgment of culpability is important aspect of rehabilitation but it cannot be exclusive indicator used by BIA in determining whether it should favorably exercise discretion under section 212(c)). The Board has in the past considered lack of, or doubtful rehabilitation, as a negative factor, to be weighed against the sum of other factors deemed favorable. See Roberts, 20 I. & N. Dec. at 302-03.
In sum, to find jurisdiction in Ceballos’s case, we would have to mischaracterize either the Board’s decision or her arguments. This we cannot do. Here, the Board was engaging in a recalculation of the equities in declining to grant a discretionary waiver despite the IJ’s conclusion to the contrary. It was exercising its discretion by balancing the equities, including rehabilitation. We may agree with the dissenting Board member that the IJ made the better overall ruling in Cebal-los’s case, given her age, circumstances, and misconduct-free recent history, see Palacios-Torres v. Immigration & Naturalization Sen., 995 F.2d 96, 99 (7th Cir. 1993) (to prove rehabilitation, alien must demonstrate “reformation or restoration to a way of life where future criminal conduct is unlikely”), but our agreement with the *635IJ would lead inexorably to the conclusion that the Board abused its discretion, see Tipu, 20 F.3d at 582 (decision that is arbitrary, irrational or contrary to law is abuse of discretion), and that is precisely the determination we are not authorized to make since the passage of IIRIRA.
We will grant the Attorney General’s motion and dismiss the petition for review for lack of subject matter jurisdiction.
. Ceballos applied for admission as a returning lawful permanent resident in May of 2008 at Miami International Airport. The Department of Homeland Security (DHS) initiated removal proceedings against her on or about July 28, 2008, charging that she was inadmissible.
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Ronell Smith appeals, arguing that the District Court erred by denying his motion to withdraw his guilty plea which was made as part of a plea agreement. Because our opinion is wholly without prece-dential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will dismiss this appeal.
At the plea hearing, the District Court conducted a proper colloquy with Smith, inquiring about his understanding of the criminal charge and the applicable sen*636tencing range. The District Court also ensured that Smith understood that his sentence would be given later after review of the presentence report and other documents, and that he would not be able to appeal the sentence. The District Court then ascertained that Smith read the plea agreement with counsel, and confirmed that the plea agreement expressed the entire bargain between the government and himself. Smith attested that he signed the plea agreement voluntarily, free of any coercion. After this, Smith’s attorney stated that Smith signed the document knowingly and voluntarily. Finally, Smith declined the opportunity to ask any further questions. After all of this, Smith pleaded guilty to the charge of conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846. The District Court later sentenced Smith as a career offender to a term of 262 months imprisonment.
From all of this we conclude that, through his plea agreement, Smith knowingly and voluntarily waived his right to appeal. While we have jurisdiction, it has been our practice to refrain from exercising it except where it would result in a miscarriage of justice. U.S. v. Shedrick, 493 F.3d 292, 297 (3d Cir.2007). For the above stated reasons, we will dismiss this appeal.
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Petitioner He Xin Chen petitions for review of an order of removal issued by the Board of Immigration Appeals (“BIA”). We will deny the petition.
Background
Petitioner, a Chinese citizen, applied for asylum in 2003 after entering the United States. He claimed that, pursuant to China’s family planning policy, officials mandated that he be sterilized because his wife had already given birth to one son. He submitted as evidence his wife’s medical records, the sterilization order issued by the government in 2002, and a receipt issued in 1994 to petitioner and his wife when they paid a fine for having a child before marriage. On October 15, 2004, Immigration Judge Rosalind K. Malloy found petitioner’s claims credible and determined that petitioner’s “opposition to the family planning practices of China constitutes a political opinion” for which he would be persecuted upon returning to China. PetApp. I, at 33. Judge Malloy granted asylum.
On March 21, 2005, Elaine Wooton, a forensic document examiner employed by U.S. Immigration and Customs Enforcement (“ICE”), sent a brief letter to an ICE attorney challenging the authenticity of the sterilization order and fine receipt submitted by petitioner. Wooton noted that the two documents bear nearly identical markings from a rubber stamp, and concluded that these impressions had been generated by the same stamp, at about the same time. If this were true, then it could not be the case, as petitioner claimed, that the fine receipt was issued in 1994 while the sterilization order was issued in 2002. (It is not clear what prompted Wooton to write this letter, or why it was not issued until five months after the asylum hearing.) On April 11, the Government moved to reopen the removal proceedings. On April 15, before petitioner could respond, Judge Malloy granted the motion and reopened the proceedings.1
On September 28, Gary Herbertson, also a forensic document examiner, sent a brief letter to petitioner’s counsel regarding the authenticity of the documents. Herbert-son concluded that there was insufficient evidence to determine whether one stamp (as Wooton believed) or two stamps (as petitioner claimed) had been used for the two documents.
*638At a hearing on October 11, Judge Mal-loy heard testimony from Wooton and Herbertson. Wooton testified that she had examined the two stamp impressions side by side, and had determined that they shared “minute, microscopic marks.” Pet. App. II, at 75. Wooton testified that she was “100% sure” that these similarities meant that the impressions had been created by the same stamp at the same time. Pet.App. II, at 89. However, Wooton was unable to identify the specific marks shared by the impressions because she had not kept any notes of her work (pursuant to an Immigration and Customs Enforcement policy) and did not have copies of the fine receipt or sterilization notice available to her during the hearing.
Herbertson testified that he had used a different methodology to compare the two stamp impressions. He had superimposed an image of one of the stamp impressions on an image of the other, and had found that there were several “extraneous marks” not shared by the two impressions. PetApp. II, at 13. Herbertson thus disagreed with Wooton’s conclusion that it could be definitively concluded that the impressions were generated by one stamp. However, since Herbertson could not determine with certainty that the impressions were generated by two different stamps, he was unable to opine that the documents were definitely authentic.
On January 8, 2007, Judge Malloy issued an amended decision finding that the sterilization notice had been fabricated. She cited several factors in support of her decision: the experts’ written findings; her own insights into the likelihood that two stamp impressions, generated eight years apart, could be so similar; and a State Department report stating that documentation from China is sometimes fabricated. Since she determined that the sterilization notice had been fabricated, and since that notice was the critical evidence supporting petitioner’s claim of persecution, Judge Malloy vacated the earlier order granting asylum and issued a new order denying petitioner’s asylum application.
Petitioner appealed this determination to the BIA. On February 8, 2008, the BIA issued a decision affirming Judge Malloy’s decision and ordering petitioner’s removal. The BIA decision summarized the opinions of Herbertson and Wooton and the other evidence submitted by petitioner. The BIA found that Judge Malloy’s decision was not clearly erroneous, since Herbert-son had been unable to definitively conclude that the documents were authentic. Since the sterilization notice was central to petitioner’s claim, the BIA also determined that it was not clearly erroneous to find that “his entire asylum claim lacked credibility.” Pet.App. I, at 7.
This petition followed.
Petitioner makes two arguments. His core argument is that he was unable to adequately cross-examine Wooton at the October 11 hearing because she could not consult either her notes or the challenged documents, and that his due process rights were violated when Judge Malloy (and then the BIA) considered Wooton’s report despite this problem. As a result, petitioner contends, Wooton failed to “disclose the underlying facts or data [supporting her analysis] on cross-examination,” see Fed.R.Evid. 705, as envisioned by the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Petitioner also criticizes Wooton’s methodology in examining the documents and argues that Herbertson’s was superi- or. Petitioner also makes a second, cursory argument that Judge Malloy and the BIA failed to consider the record as a whole to find that, even accepting Woo-ton’s theory, petitioner was credible and eligible for asylum.
*639Discussion
We have jurisdiction under 8 U.S.C. § 1252 to review a final order of removal issued by the BIA. The BIA had jurisdiction over petitioner’s appeal under 8 C.F.R. § 1003.1. When the BIA conducted an independent analysis of the record, as it did here, we limit our review to the BIA’s final order, rather than the underlying determination by an immigration judge. Ez-eagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003); Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001).
We apply a deferential standard of review when reviewing decisions of the BIA. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review the BIA’s factual findings — including adverse credibility determinations and determinations of whether an asylum applicant meets the criteria for asylum — under the substantial evidence standard, and do not reverse them “unless any reasonable adjudicator would be compelled” to reach a different conclusion than that of the BIA. 8 U.S.C. § 1252(b)(4)(B); Kaita v. Attorney General, 522 F.3d 288, 296 (3d Cir.2008).
An alien facing removal is entitled to due process in asylum proceedings,2 and we review de novo claims that a petitioner’s due process rights were violated. Ez-eagwuna, 325 F.3d at 405. For due process to be satisfied, the alien must have an opportunity to review the record relied on by the decisionmaker; must be allowed to make arguments on his own behalf; and must receive an individualized determination of his interests. Abdulai, 239 F.3d at 550. Although the Federal Rules of Evidence do not apply in asylum proceedings, due process requires that evidence be admitted in asylum proceedings only when it is probative and its use is fundamentally fair. Ezeagwuna, 325 F.3d at 405. This, in turn, requires that the evidence be reliable and trustworthy. Id. When the BIA relies on evidence that does not meet these standards, it violates the alien’s due process rights. Id. at 408.
We find petitioner’s arguments unpersuasive. Despite the fact that Wooton did not have either her own notes or the challenged documents available to her at the hearing, petitioner’s counsel was able to cross-examine Wooton effectively regarding her methodology and findings. Woo-ton thus offered sufficient testimony at the hearing regarding her professional background and her methodology for examining the documents to enable Judge Malloy to evaluate her report. Wooton’s inability to identify the specific marks that were shared by the two stamp impressions may have compromised the clarity and effectiveness of her testimony. However, we do not find this deficiency so serious that it rises to a due process violation. We therefore find that Wooton’s testimony was sufficiently probative, reliable, and trustworthy for Judge Malloy to have relied on it in evaluating the Government’s claim that petitioner’s evidence was fabricated. Even if petitioner is correct that Rule 705 and Daubert would require the exclusion of Wooton’s testimony in civil litigation, that does not mean that his right to due process was violated in an immigration proceeding where, as petitioner concedes, those rules do not directly apply.
Moreover, we cannot conclude that a “reasonable adjudicator would be compelled” to reach different factual findings *640than those of the BIA. See 8 U.S.C. § 1252(b)(4)(B). Although we might have given Wooton’s testimony less weight than Judge Malloy and the BIA did, that does not mean that the BIA was “compelled” to conclude that Herbertson’s testimony should be credited over Wooton’s.
Nor can we conclude that Judge Malloy or the BIA erred in not explaining how the false document affected petitioner’s credibility in light of the record as a whole. Once Wooton’s conclusion was accepted, it was reasonable for the BIA to find that petitioner’s claims as a whole were not credible and were not sufficiently substantiated. We are not persuaded that the BIA gave short shrift to petitioner’s other evidence when it reached this conclusion.
Conclusion
We will therefore DENY the Petition for Review.
. We do not endorse this practice. However, petitioner did have an opportunity to address the basis for reopening at the later hearing, and he does not claim prejudice.
. The Government's contention to the contrary is without merit, see Ezeagwuna, 325 F.3d at 405; Abdulai, 239 F.3d at 550, and we do not agree that it is supported by Achacoso-Sanchez v. INS, 779 F.2d 1260 (7th Cir.1985), or Dandan v. Ashcroft, 339 F.3d 567 (7th Cir.2003). See also Sankoh v. Mukasey, 539 F.3d 456, 466 (7th Cir.2008) (“Due process demands an individualized assessment of each asylum applicant.”).
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OPINION
SMITH, Circuit Judge.
In this employment discrimination action, we are asked to review the District *646Court’s grant of summary judgment against an employee after his employer denied his request for a transfer. The District Court held that the employee failed to make out a prima facie case of age discrimination and, in the alternative, that he failed to offer any evidence to discredit the employer’s non-discriminatory reason for its decision or to show that a discriminatory reason more likely motivated it. For the reasons that follow, we will affirm the judgment of the District Court.
I.
Appellee Allegheny Energy Services Corporation (“Allegheny”) provides power to residential and commercial customers in Ohio, West Virginia, Pennsylvania, Maryland, and Virginia. Appellant Barry Heil-man began his employment with Allegheny in 1973 at the age of 19. He progressed up the ranks and now works as a lead lineman at the Kittanning Service Center. He is a member of Local Union No. 102 of the Utility Workers Union of America and was at times relevant to this case over the age of 40.
On March 14, 2006, Allegheny posted two vacancies for weekend lead lineman positions at its Arnold Service Center. The positions came with a residency requirement: linemen and servicemen at the Arnold Service Center, just like all linemen and servicemen at Allegheny’s locations throughout Pennsylvania, had to live within a 30-minute drive of their service center. Because linemen and servicemen are often called out to remedy power outages, Allegheny requires them to live within this range to ensure a quick response when called.
Heilman resides, and at the time of his bidding resided, in Ford City, Pennsylvania. The Arnold Service Center is located in Arnold, Pennsylvania. Before he bid, Heilman did not time his commute, but he believed, based on his longtime familiarity with the area, that he lived within a 30-minute drive of the Arnold Service Center. Heilman and others bid for the positions, and he and Michael Wright, another lead lineman from Kittanning, were awarded the positions. Allegheny had no discretion in awarding the positions, as Heilman and Wright were the senior-most Union members bidding. Heilman began his new position with a 6-month probationary period, which, among other things, allows time for a lineman or serviceman to move his residence if he resides outside the 30-minute range.
The time of Heilman’s commute became an issue at a safety meeting held three to four months after he began at the Arnold Service Center.1 Two of his superiors, on two separate occasions, each tested the commute between Heilman’s residence and the Arnold Service Center. They clocked the commute at 54, 40, 34, and 33 minutes. The last was on a route suggested by Heilman. During this time, the Local 102 Vice President also tested the commute, and he clocked it at 38 minutes. Heilman was informed that he did not meet the residency requirement and that he would have to return to his lead lineman position at the Kittanning Service Center at the end of his probationary period. Wright, who met the residency requirement for the Arnold Service Center, was permitted to remain there.
Heilman filed this discrimination action pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq., and the Pennsylvania Human Rights Act, 43 Pa. Cons.Stat. §§ 951, et seq. The District Court, having jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367, granted sum*647mary judgment in Allegheny’s favor because it found that Heilman failed to prove a prima facie case of discrimination. Specifically, the District Court concluded that there was no genuine issue of material dispute and that Heilman was not qualified for the lead lineman position at the Arnold Service Center because his residence was more than 30 minutes away. In addition, assuming that Heilman was qualified, the District Court found that no genuine issue of material fact remained regarding Allegheny’s legitimate, non-discriminatory reason for transferring him back to Kittan-ning, namely, the residency requirement. Heilman timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.2
II.
We “exercise plenary review over the District Court’s grant of summary judgment and apply the same standard that the District Court should have applied.” Shuman ex rel Shertzer v. Penn Manor Sck. Dist., 422 F.3d 141, 146 (3d Cir.2005) (quotation omitted). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences from the evidence must be drawn in his favor. Conopco, Inc. v. United States, 572 F.3d 162, 165 (3d Cir.2009).
III.
Heilman has offered no direct evidence of discrimination. In an indirect evidence case, it has been our usual practice to analyze the claims under the framework set up by the Supreme Court for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir.2007) (‘We have stated that ‘the ADA, ADEA, and Title VII all serve the same purpose .....Therefore, it follows that the methods and manner of proof under one statute should inform the standards under the others as well.’ ”) (quoting Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir.1995)). We note that the Supreme “Court has not definitively decided whether the evidentiary framework of McDonnell Douglas ... utilized in Title VII cases is appropriate in the ADEA context.” Gross v. FBL Financial Services, Inc., 557 U.S. -, 129 S.Ct. 2343, 2349 n. 2, 174 L.Ed.2d 119 (2009). However, as it has been our practice to do so, and lacking direction from the Supreme Court, we will continue to apply the McDonnell Douglas regime. Thus, a plaintiff must first establish a prima facie case of discrimination. If a prima facie showing has been made, the defendant must shoulder a burden of production to articulate a legitimate, nondiscriminatory reason for the employment decision. Ultimately, the burden of persuasion always remains with the plaintiff to establish that the defendant’s reasons are pretextual and that the real reason for the decision was unlawful discrimination. Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 78 (3d Cir.2009) (citations omitted).
To establish a prima facie case of discrimination based on Allegheny’s transfer of Heilman back to Kittanning, he must demonstrate that he is over 40 years old, *648he is qualified for the position at the Arnold Service Center, he suffered an adverse employment action, and other similarly situated individuals were treated more favorably. Fasold v. Justice, 409 F.3d 178, 184-85 (3d Cir.2005). The District Court, after determining that the record established that Heilman was not qualified for the position, did not analyze the remaining elements of a prima facie case. Because we write only for the parties, and because we agree with the conclusion reached by the District Court, we likewise will not address the remaining elements.
Heilman strongly urges on us that, in the normal course, the issue of an employee’s qualification for a position should be resolved in the second and third stages of the McDonnell Douglas analysis. See Ezold, v. Wolf Block, Schorr and Solis-Cohen, 983 F.2d 509, 523 (3d Cir.1992). This will normally prevent putting “too onerous a burden on the plaintiff in establishing a prima facie case.” Id. Of course, Heilman is aware that “we have refused to adopt a blanket rule” to this effect. Id. (citation omitted). The District Court ruled that the there was no genuine issue of material fact regarding Heilman’s qualifications for a lead lineman position at the Arnold Service Center, and he was not so qualified because he did not meet the residency requirement. We see no error.
Heilman argues that the 30-minute requirement is not an objective requirement but depends on many variables such as the weather and the route taken. This is undoubtedly true, but in a counterintuitive way it works against him. Allegheny maintained a residency requirement for its Pennsylvania locations. This requirement was measured in minutes of driving and not, for example, miles. We will not supplant Allegheny’s construction of this requirement with our own. Allegheny is the employer and may apply its rales to its workers in any fashion it sees fit, save an unlawful one. After four separate time trials by Allegheny personnel, and a fifth by a Union representative, Allegheny concluded that Heilman lived outside the required range. The District Court’s ruling that Heilman lived outside the 30-minute range is supported by the record. Thus, Heilman was not qualified for the position and did not establish a prima facie case of discrimination.
Assuming, arguendo, that Heilman could establish a prima facie case, including that he is otherwise qualified for the position, Allegheny articulates Heilman’s failure to meet the residency requirement as its legitimate, non-discriminatory reason for its decision. Heilman raises several grounds to argue that this reason is pretext, all of which fail. First, Ryan Moore, who is younger than Heilman and lives more than 30 minutes from the Arnold Service Center, nevertheless has been allowed to remain stationed there. Moore, however, is a meter reader, not a lead lineman. Next, Keith King works at the Arnold Service Center as a lead lineman but lives more than 30 minutes away. King’s situation does not shed light on Allegheny’s motives because King moved there 10 years before and was given permission by a different supervisor. That is unlike Heilman, who was granted a transfer and given six months to relocate. Moreover, three other younger employees, Nick Randolph, Grant Pence, and Keith Melville, failed to meet the residency requirement and were prohibited from transferring to a service center unless they satisfied it.
Finally, Heilman argues that Allegheny has waived the 30-minute residency requirement for its employees in Mt. Airy, Maryland. Allegheny counters that the cost of living within 30 minutes of its service center there is prohibitively expensive *649for its Mt. Airy employees. We are not tasked with reviewing the reasonableness of Allegheny’s employment requirements. Ezold, 983 F.2d at 527 (citations omitted); cf. Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir.1988) (“No matter how medieval a firm’s practices, no matter how high-handed its decisional process, no matter how mistaken the firm’s managers, the ADEA does not interfere.”) (quotation and alteration omitted). Our only task is to decide if Heilman introduced enough evidence to get past summary judgment on his claim for discrimination. He did not.
To get past summary judgment, an employment discrimination plaintiff must either present enough evidence to cast sufficient doubt on the employer’s legitimate, non-discriminatory reason, and thereby create a genuine issue of material fact as to it, or offer sufficient evidence to create a genuine issue of material fact that discrimination was the real reason for the action taken. Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994). Heilman failed to introduce enough evidence to create a genuine issue of material fact on either front. Thus, judgment against him was appropriate, Fed.R.Civ.P. 56(c), and we will affirm the judgment of the District Court.3
. The content of this meeting is not apparent from the record.
. Heilman also included two claims for retaliation, under the ADEA and PHRA. The District Court entered judgment against him on these claims as well, but he does not appeal that decision.
. Judge Stapleton would assume, arguendo, the existence of a prima facie case and would hold that Heilman has not carried his burden of tendering evidence at the third stage of the McDonnell Douglas analysis.
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the judgment of conviction and sentence.
Jennia Morrow, her brother Jerome Morrow and Henry Jones were charged with Conspiracy to Possess with Intent to Distribute Five Grams or More of Crack Cocaine, in violation of 21 U.S.C. § 846, and Possession with Intent to Distribute and Distribution of Five Grams or More of Crack Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(B)(iii). After a four-day trial, the jury found all of the defendants guilty. The District Court sentenced Jennia Morrow and Jones to 63 months imprisonment on both counts, running concurrently, with four years supervised release. The District Court sentenced Jerome Morrow to 360 months imprisonment, running concurrently with his state sentence, followed by eight years of supervised release. Jennia Morrow raises two issues.
Morrow asserts a Sixth Amendment violation. At trial, a jailhouse informant testified about a conversation that he had with Jerome Morrow. The testimony was the subject of a motion in limine, in which the government recognized that Jerome Morrow’s words to the informant arguably incriminated Jennia Morrow and Henry. The government stated at the pre-trial hearing that it had worked with the informant to steer him away from these potentially incriminating statements. However, at trial, Jerome Morrow’s counsel cross-examined the informant, asking him “Did you see any written materials with respect to [Jerome Morrow’s] case?” The informant answered “He showed me a piece of paper that said that — she gave him — she took two hundred bucks.” Jerome Morrow did not testify at trial.
Jennia Morrow argues that the informant’s statement incriminated her in the conspiracy, and claims that her inability to cross-exam Jerome Morrow resulted in a Sixth Amendment Confrontation Clause violation. We exercise plenary review. U.S. v. Mitchell, 145 F.3d 572, 576 (3d Cir.1998).
The record provided ample evidence of Jennia Morrow’s participation in the conspiracy apart from the testimony at issue. Jennia Morrow admitted receiving the $200. Another informant also testified *651to this, independent from any reference to the transcript at issue. Therefore, we conclude that even if we were to find that the admission of this testimony was a Sixth Amendment violation, the error would be harmless.
Morrow’s second issue on appeal, regarding the jury instruction, is meritless. In accord with Spangler, the District Court properly instructed the jury to account for character evidence along with all other evidence. U.S. v. Spangler, 838 F.2d 85, 86 (3d Cir.1988). Morrow was not entitled to a jury instruction that character evidence alone was sufficient to create reasonable doubt.
For all of these reasons, we will affirm the judgment of conviction and sentence of the District Court.
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Raymond Calvitti appeals orders of the United States District Court for the Eastern District of Pennsylvania dismissing his complaint against Anthony & Sylvan Pools Corporation (“A & S”) and an affiliated trust and trustee. Because Calvitti entered into an unambiguous agreement releasing those parties from any claim, we will affirm.
1. Background
Calvitti served as the President of KDI Sylvan Pools, Inc. (“KDI”), the predecessor in interest to A & S.1 On April 12, 1993, KDI created a Supplemental Retirement Plan (the “Plan”) designed to “reward Raymond J. Calvitti ... for his loyal and continuous service to the Company by providing supplemental retirement benefits.” (App.31.) As part of the Plan, KDI created a trust (the “Trust”) and agreed to make periodic contributions to it. The Plan stated that when Calvitti reached the age of 65 and was no longer working for KDI, the Company would “pay him an amount equal to the fair market value of the assets in the Trust as of such date.” (App.32.)
Under the Plan, Calvitti’s benefits were to be paid from KDI’s assets, not the Trust.2 The Trust served only as a meas*653uring stick for the amount Calvitti was due under the Plan. The Trust Agreement further emphasized that Calvitti did not have any claim to, or interest in, the assets in the Trust.3
In October 1995, KDI terminated Calvit-ti for cause. The following month, Calvitti and KDI entered into an “Agreement and Release” (the “Agreement”) designed to resolve all issues and disputes between them and sever their relationship amicably. In the Agreement, KDI agreed to (1) waive all claims it had against Calvitti as a result of his misconduct;4 (2) pay Calvitti a lump sum of $33,333.33; (3) pay Calvitti $3,846.15 per week from October 30, 1995 to June 30, 1996 (roughly $134,000); and (4) pay Calvitti’s health insurance expenses through June 30,1996. (App.86-89.)
In return, Calvitti agreed to release KDI and its affiliated entities from any claims he may have had against them. The release provides as follows:
For and in consideration of the monies and Benefits paid to EMPLOYEE [Cal-vitti] by EMPLOYER [KDI], ... and for other good and valuable consideration, EMPLOYEE hereby waives, releases and forever discharges EMPLOYER ... and the Supplemental Retirement Plan of KDI Pools, Inc., their assigns, predecessors, successors, trustees, and affiliated entities ... from any and all claims, suits, debts, dues, accounts, ... contracts, ... agreements, promises, claims, ... or causes of action of any kind or nature whether in law or equity, ... including, but not limited to ... claims arising under ... the Employment Retirement Income Security Act of 1974 (ERISA) ... and any and all other claims arising under federal, state or local law ... whether known or unknown; provided, however that parties do not release each other from any claim of breach of the terms of this Agreement and Release.
(App. 87-88 (emphasis in original).) By its terms, the Agreement specifically released KDI and its successors and affiliated entities from claims brought under ERISA.
Another section of the Agreement stated that KDI would have no further obligation to make any additional contributions to the Trust.5 The Agreement also contained a *654provision advising Calvitti to consult an attorney, stating that he had been given 21 days to consider the Agreement, and giving him seven days to rescind the Agreement after signing it. (App.91.)
On August 2, 1996, after KDI had fully performed under the Agreement, Calvitti, who had not yet reached the age of 65, requested that KDI pay him the sums held in the Trust. KDI’s attorney responded simply that KDI had “determined to continue administration of the Plan according to its terms.” (App.59.) In 2007, Calvitti turned 65 and again requested the sums held in the Trust. Calvitti’s request was denied, and he filed suit in the United States District Court for the Eastern District of Pennsylvania, alleging violations of ERISA and various common law claims. The complaint was later amended to add the Trust and Trustee as defendants.
KDI filed a motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Calvitti’s First Amended Complaint for failure to state a claim. In an order dated June 2, 2008, the District Court granted the motion, finding that Calvitti had unambiguously released all his claims — -including ERISA claims — against KDI. The Court noted that, in fighting dismissal of his complaint, Calvitti had limited his arguments to the interpretation of the Agreement and had not challenged whether the Agreement was entered into knowingly and voluntarily. The Court also held that Calvitti’s common law claims were preempted by ERISA.
On June 9, 2008, the Trust and Trustee filed a motion to dismiss, which the Court granted on June 24. Calvitti separately appealed the District Court’s orders dismissing his claims against KDI and the Trust and Trustee, and his appeals have been consolidated for disposition. On appeal, he argues that he did not relinquish his claims to the money held in the Trust.
II. Discussion6
We review de novo the District Court’s decision to grant a motion to dismiss. Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). In deciding a motion to dismiss under Rule 12(b)(6), a trial court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Id. at 233 (quotation omitted).
We apply federal law to the interpretation of contracts affecting ERISA benefits. Moráis v. Cent. Beverage Corp. Union Employees’ Supplemental Retirement Plan, 167 F.3d 709, 711 (1st Cir. 1999); see also Fisher Dev. Co. v. Boise Cascade Corp., 37 F.3d 104, 108 (3d Cir. 1994) (citation omitted) (“It is, of course, well settled that federal law governs issues relating to the validity of a release of a federal cause of action.”). That law includes the general contract principle that “an unambiguous agreement should be enforced according to its terms.” McDowell v. Phila. Housing Auth., 423 F.3d 233, 238 (3d Cir.2005). Whether an agreement is ambiguous is a question of law for the court to decide after considering whether, from an objective standpoint, the agreement is reasonably susceptible to at least two different interpretations. See id. In making that determination, the court should consider the language of the agree*655ment, the interpretations suggested by the parties, and the extrinsic evidence offered in support of each interpretation. Fin-horn v. Fleming Foods of Pa., Inc., 258 F.3d 192, 194-95 (3d Cir.2001). Although we consider extrinsic evidence to determine whether a contract is ambiguous, “[i]n no event may extrinsic evidence be employed to contradict explicit contract language or to drain an agreement’s text of all content save ink and paper.” Smart v. Gillette Co. Long Term Disability Plan, 70 F.3d 173, 180 (1st Cir.1995).
The contract language at issue is, again, as follows:
“EMPLOYEE [Calvitti] hereby waives, releases and forever discharges ... [KDI], ... the Supplemental Retirement Plan of [KDI], their assigns, predecessors, successors, trustees, and affiliated entities ... from any and all claims, suits, debts, dues, accounts, ... charges, complaints, damages, sums of money ... or causes of action of any kind ... including but not limited to ... claims arising under the Employee Retirement Income Security Act of 1974 (ERISA)....”
(App.87-88.)
Not surprisingly, the parties suggest very different meanings for the Agreement’s language. The Appellees contend that Calvitti waived all his claims against them, including claims brought under ERISA for proceeds from the Plan. Calvit-ti, on the other hand, asserts that the Agreement does not affect his right to the assets set out in the Plan. In support of his position, he observes that the Agreement also releases KDI from continuing to make payments into the Trust and maintains that such a release would be unnecessary if he no longer had a claim to the assets in the Trust.
He also avers that extrinsic evidence supports his reading of the Agreement. Calvitti alleges that after the effective date of the Agreement, KDI made an additional contribution to the Trust of a sum that had accrued before the Agreement was entered. He argues that KDI had no reason to make that contribution if he had released his interest in the Trust and the assets in the Trust had reverted back to KDI. Calvitti also contends that when he requested the assets in the Trust before turning 65, KDI responded with a letter stating that the Plan would continue to be administered according to its terms. He argues that if, under the Agreement, he had released his right to the assets in the Trust and they had reverted back to KDI, then KDI would have said so in its letter. Instead, Calvitti argues, KDI responded in a manner consistent with his claim that he did not release his right to the assets in the Trust.
Despite Calvitti’s attempts to add ambiguity, we conclude that the language of the Agreement clearly supports the interpretation advanced by KDI, the Trust, and the Trustee. Calvitti expressly released KDI, the Plan, and their affiliated entities, which includes the Trust and Trustee, from all claims, including specifically ERISA claims. The provision releasing KDI from its obligation to continue funding the Trust is simply the type of belt-and-suspenders provision that has become common in modern contracts and does not change the unambiguous nature of the release. Likewise, the extrinsic evidence presented by Calvitti does not infuse ambiguity into the clear language of the Agreement. KDI’s post-agreement contribution to the Trust was a single event, probably no more than a mistake but certainly not a course of performance. It does not call into question the clearly expressed release. Similarly, KDI’s letter stating that the Plan would continue to be administered according to its terms, while not a model of clarity, does not imply that *656Calvitti had any further interest in Plan proceeds or any interest at all in the Trust.
In language as plain as can be, both the Plan and Trust Agreement state that Cal-vitti never had any interest in, or right to, the assets in the Trust. His claims to Plan proceeds were against KDI, and he waived all his claims when he signed the Agreement.
III. Conclusion
Calvitti specifically waived any and all claims, including ERISA claims, against KDI, the Plan, and their affiliated entities. The Agreement cannot be reasonably interpreted otherwise. Accordingly, we will affirm the District Court’s orders dismissing Calvitti’s claims.
. For ease of reference, appellee A & S is referred to hereafter by the name of its predecessor in interest, KDI.
. Sections 15 and 16 of the Plan read as follows:
15. All benefits to be provided pursuant to this Plan are general, unfunded obligations *653of the Company. Neither Employee nor his beneficiary will have any interest in any specific asset of the Company as a result of this Plan.
16. Benefits under this Plan will be paid from the general assets of the Company. The assets of the Trust shall not, under any circumstances, be deemed to be an asset of this Plan, but at all times shall remain a part of the general assets of the Company, subject to claims of the Company's general creditors.
(App.34.)
.Section 1(d) of the Trust Agreement reads as follows: "... Plan participant and his benefi-ciaiy shall have no preferred claim on, or any beneficial ownership interest in, any assets of the Trust. All rights created under the Plan and this Trust Agreement shall be mere unsecured contractual rights of the Plan participant and his beneficiary against Company.. -(App.37.)
. Attachment 1 to the Agreement is a list of actions for which KDI might have had claims against Calvitti, including (1) defalcation of an amount in excess of $60,000; (2) awarding improper referral bonuses; (3) non-business related distribution of sports tickets paid for by KDI; (4) payment of non-business related dues, fees, and other country club expenses with KDI funds; (5) payment of non-business related expenses for golf trips, green fees, and dinners with KDI funds; (6) improper use of KDI employees, materials, and equipment for personal projects; and (7) improper use of KDI equipment and employees for the benefit of a related company. Presumably, the listed actions are also the reasons that Calvitti was fired.
. Subsection (5) of the Agreement states: "It is agreed that EMPLOYER shall have no obligation to make any additional contributions to the Trust established pursuant to the Sup*654plemental Retirement Plan of KDI Pools, Inc.” (App.87.)
. The District Court had jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
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AMBRO, Circuit Judge,
dissenting.
This case asks a simple question: are the words of a release so certain that no confusion can exist as to their meaning, and ultimately the parties’ intent. My colleagues believe (along with the District Court) that the words of the release here are so clear that no reasonable person can confuse the intent of KDI and Calvitti.7 That belief is both plausible and well stated: Calvitti released KDI, the Plan and the “Trustees” of the Plan from all “claims, ... agreements, ... or causes of action” of any kind, including ERISA claims. But if that belief is so certain, why is it that the parties acted otherwise after the release was signed?
Words are the parties’ attempt to communicate their intent. If the intent of the Agreement and Release signed by Calvitti and KDI were to release the monies left in the Trust (approximately $275,000) as of the date of the release (October 30, 1995), it misfits reason that all actions by KDI within months after the release indicated its understanding that the monies in the Trust someday would be Calvitti’s. KDI made post-release an additional contribution to the Trust to complete its funding obligation under the Plan that existed before the release. This KDI did in the face of specific language in the release that absolved it of any “obligation to make any additional contributions to the Trust established pursuant to the [P]lan.” (App.87.) And again, in August 1996, Calvitti formally asked that the funds then in the Trust be given to him. KDI’s general counsel, the same person who signed the release on behalf of KDI less than a year earlier, responded that KDI had “determined to continue administration of the Plan according to its terms.” Street sense simply would expect a response by KDI to Calvit-ti that he released his rights to the Trust monies. Not only was there no such response, KDI appeared to have agreed then with what Calvitti asserts was the parties’ intent.
But my colleagues say the words of the release counter the post-release actions of the parties and the claims of Calvitti. “In language as plain as can be, both the Plan and Trust Agreement state that Calvitti never had any interest in, or right to, the assets in the Trust. His claim to Plan proceeds were against KDI, and he waived all his claims when he signed the [release].” Maj. Op. at 656. The implication is that no reasonable person could believe other than that Calvitti waived his rights to the monies remaining in the Trust.
But KDI was reasonable, and it acted otherwise. Calvitti did as well. There are thus before us competing meanings of the release. “To choose between ... competing meanings, we can consider extrinsic evidence of the parties’ understanding of [the release]. An important source of such evidence is the parties’ performance of the agreement,” as it “can ... demonstrate a *657latent ambiguity in the contract, which itself is a basis upon which to deny summary judgment.” Smith v. Hartford Ins. Group, 6 F.3d 131, 138-39 (3d Cir.1993) (citations omitted). Moreover,
[t]o decide whether a contract is ambiguous, we do not simply determine whether, from our point of view, the language is clear.... Before making a finding concerning the existence or absence of ambiguity, we consider the contract language, the meanings suggested by counsel, and the extrinsic evidence offered in support of each interpretation. Extrinsic evidence may include the structure of the contract, the bargaining history, and the conduct of the parties that reflects their understanding of the contract’s meaning.
Teamsters Indus. Employees Welfare Fund v. Rolls-Royce Motor Cars, Inc., 989 F.2d 132, 135 (3d Cir.1993) (citations omitted). Accord Bethlehem Steel Corp. v. United States, 270 F.3d 135, 139 (3d Cir. 2001). If this is the case with respect to summary judgment, how much more so is it at the motion to dismiss stage.
In the end my colleagues may be right— these post-release acts may have been simply “mistake[s].” Maj. Op. at 655. My suspicion otherwise — strong as it is that sophisticated principals would not have acted against their self-interest so starkly, and so soon, after the release — may prove wrong. But my colleagues’ beliefs, and my skepticism, are irrelevant at the Rule 12(b)(6) stage. All that counts there are that we take Calvitti’s assertions of fact at face and determine whether, despite that, he cannot win as a matter of law. With the facts of our case, at the least this calls for discovery. None was had here. Without it, Calvitti’s statements stand, and there is nothing to counter them but the words of a release the meaning of which is disputed by the parties.
To conclude, I do not believe that the words of the release are so clear as some believe. Maybe the release was of all claims Calvitti may have to any assets in the Trust or perhaps it was simply an agreement that KDI need not make additional contributions to the Plan that would arise post-release (thus making sense out of the post-release additional contribution to the Trust of KDI’s obligation that arose pre-release). Perhaps this is some form of trust that prevents the Plan sponsor (KDI), absent its insolvency or the Trust’s termination by agreement, from holding back deemed Trust assets to its beneficiary (Calvitti). (KDI is not insolvent, and nothing in the release triggers Trust termination.) Perhaps KDI’s post-release conduct against its own interest is explainable. When these questions are weighed against the backdrop that (1) a release discharges claims that have arisen at the time of that release, and not future claims, see Medtronic AVE, Inc. v. Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 56 n. 4 (3d Cir.2001), thus leaving the question of whether Calvitti’s claim for benefits accrued under ERISA prior to the release or when he reached age 65, and (2) even words clear at face are subject to evidence of the parties’ contrary intent, a ruling here for either party fails to fit Rule 12(b)(6).
I thus respectfully dissent and would remand this case to the District Court.
. Unless otherwise noted, terms defined by the majority are used here.
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OPINION
PER CURIAM.
On November 4, 2008, Petitioner Jeffrey Keith, a prisoner proceeding pro se, petitioned the District Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the voluntariness of his plea and the effectiveness of his appellate counsel. The Commonwealth of Pennsylvania moved for an extension of time to file a response, and in April 2009, the District Judge granted the motion, granting the Commonwealth until June 1, 2009, to respond. Having received no response, on August 5, 2009, the District Judge entered an order that a hearing on the habe-as petition would be scheduled if the Commonwealth did not submit a response by September 1, 2009. The Commonwealth then submitted a response to Keith’s habe-as petition on August 31, 2009. On September 4, 2009, Keith petitioned this Court for a writ of mandamus, requesting an order compelling the District Court to act upon his habeas petition.1 Since that time, on September 9, 2009, Keith filed a reply brief to the Commonwealth’s response to his habeas petition in the District Court.
Mandamus is a drastic remedy available only in extraordinary cases, see In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.2005), as the petitioner must demonstrate that he has “no other adequate means” to obtain the relief desired and a “clear and indisputable” right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79 (3d Cir.1996). Although a district court has discretion over the management of its docket, see In re Fine Paper Antitrust Litig., 685 F.2d 810, 817-18 (3d Cir.1982), a federal appellate court “may issue a writ of mandamus on the ground that [the district court’s] undue delay is tantamount to a failure to exercise jurisdiction.” Madden, 102 F.3d at 79.
We recognize that approximately one year has elapsed since the date Keith submitted his habeas petition. However, the Commonwealth recently submitted a response to which Keith submitted a reply. We cannot conclude that the overall delay in this matter rises to the level of a denial of due process, see id., and we are confident that the District Court will enter an order in due course. Accordingly, the petition is denied.
. At the time Keith submitted his motion for writ of mandamus, it appears that he had not yet received a copy of the Commonwealth’s response, which was filed on August 31, 2009. See Motion for Writ of Mandamus, p. 4 ("The Petitioner asserts that it is past September 1st 2009, and apparently no response has been filed because he has not receiving nothing, nor has the District Court responded.”).
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OPINION
AMBRO, Circuit Judge.
Appellants Oscar Sandoval, M.D., and entities he controls, Hudson County Psychiatric Associates (“HCPA”) and Oscar Sandoval M.D., P.C. (collectively “Sando*665val”), appeal multiple orders of the District Court. We affirm on all claims. What Sandoval appeals is not clearly defined, which has been a principal problem of his submissions throughout this case. See, e.g., Supp.App. at 300 (Magistrate Judge describing Sandoval’s “moving papers” as “confusing”). Generally, Sandoval’s arguments concern his third-party complaint, counterclaims, and motion for recusal. Though his brief is indecipherable in certain parts, he argues, among other things, that the District Court erred in denying his motion for leave to amend the third-party complaint and dismissing that complaint with prejudice, dismissing his counterclaim and denying his motion for leave to file a second amendment to the counterclaim, and failing to grant his motion for recusal.1 See Sandoval Br. at 1-2.
Because we write for the parties, we will discuss only the most pertinent facts and briefly outline the relevant procedural history that concerns an alleged public corruption RICO scandal involving Sandoval’s psychiatric contracts with Hudson County, New Jersey.2 The initial action was filed by Hudson County, its County Executive and Board of Chosen Freeholders, among others, against Robert C. Janiszewski— individually and in his prior capacity as Hudson County Executive — Western Surety Company, Sandoval, and others. Plaintiffs principally alleged civil violations of RICO and its New Jersey counterpart, among other statutory and common law claims. They also sought a declaratory judgment against Western Surety.
The complaint’s allegations against Sandoval were that, from 1995 through 2000, he paid approximately $40,000 in bribes and gratuities to Janiszewski. In exchange, Janiszewski recommended the renewal and extension of Sandoval’s County psychiatric contracts. Consequently, Sandoval was awarded over $7 million in County contracts between 1996 and 2001. In response, Sandoval’s answer raised a civil federal and New Jersey RICO counterclaim against plaintiffs for retaliation arising out of his cooperation in the federal criminal RICO prosecution.
Sandoval also filed a third-party complaint against Appellee Donald Scarinci (an attorney), Janiszewski, and other Hudson County officials. Similar to his counterclaim, Sandoval alleged civil federal and New Jersey RICO claims stemming from the third-party defendants’ purported extortion in exchange for awarding County contracts to Sandoval and subsequent retaliation against him for his participation in the criminal RICO prosecution. The alleged retaliation involved “baseless” Hudson County prosecutor investigations and the failure to renew his County contracts in 2001. Sandoval sought leave to amend his third-party complaint to add a U.S. Senator and another individual as third-party defendants. The District Court dismissed this motion without prejudice due to ongoing settlement discussions.
After settlement discussions failed to dispose of the case, the motion to amend was deemed refiled and plaintiffs and sev*666eral third-party defendants filed briefs opposing it. In September 2007, the District Court determined that the proposed motion was futile under Federal Rules of Civil Procedure 14(a) and 15(a) because the claims against the proposed third-party defendants would not survive a Rule 12(b)(6) motion to dismiss.
In November 2007, the Court issued an order and thorough opinion dismissing with prejudice (i) the federal and New Jersey RICO claims in the Complaint (Counts I through IV) because they were time-barred, (ii) Sandoval’s counterclaims, and (iii) Sandoval’s third-party complaint. See County of Hudson v. Janiszewski, 520 F.Supp.2d 631, 654 (D.N.J.2007). It also denied Sandoval’s motion for reconsideration. Thereafter, in December 2007, it denied Sandoval’s motion for leave to file a second amended counterclaim because the motion was moot in light of the Court’s decision dismissing the counterclaims and the proposed amendments were futile.
Sandoval also filed a motion to recuse presiding District Court Judge Pisano pursuant to 28 U.S.C. § 455(a). The Court denied this motion and denied Sandoval’s motion for reconsideration. We denied his subsequent petition for a writ of mandamus.
In January 2008, the Court dismissed the entire action based on a settlement, and sua sponte declined to exercise supplemental jurisdiction over any remaining state statutory or common law claims, cross-claims, and counterclaims.
I.
Our standard of review over the District Court’s dismissal under Federal Rule of Civil Procedure 12(b)(6) is plenary. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996). We review a denial of a motion for leave to amend a complaint or a claim for abuse of discretion. Krantz v. Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d Cir.2002). Similarly, the District Court’s denial of a motion to recuse is reviewed for abuse of discretion. Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir.2000) (noting that a “judge is required to recuse where his or her impartiality ‘might reasonably be questioned’ ”) (citation omitted).
II.
In a thorough opinion, the District Court denied Sandoval’s motion to amend his third-party complaint because to do so would be futile. See Supp.App. at 186-92; see also County of Hudson v. Janiszewski, No. 06-319, 2007 WL 2688882, at *1-6 (D.N.J. Sept. 13, 2007). “An amendment is futile if the amended complaint would not survive a motion to dismiss.... ” Alvin v. Suzuki 227 F.3d 107, 121 (3d Cir.2000). The Court recognized that the motion was governed by Federal Rule of Civil Procedure 15, dealing with amendments of pleadings before trial, and Rule 14, the Rule governing third-party claims. The Court concluded that Sandoval’s proposed amendments failed to meet the indemnification or contribution requirements of Rule 14 because the amendments alleged an independent claim, see, e.g., Fed. Deposit Ins. Corp. v. Bathgate, 27 F.3d 850, 873 (3d Cir.1994), and there is no right to indemnification or contribution under RICO, see, e.g., Friedman v. Hartmann, 787 F.Supp. 411, 415 (S.D.N.Y.1992).
Thereafter, the District Court dismissed Sandoval’s third-party complaint. See Janiszewski, 520 F.Supp.2d at 654. It determined that Sandoval did not have standing under civil RICO, 18 U.S.C. § 1964(c), because the alleged RICO violations did not proximately cause his injuries. Janiszewski 520 F.Supp.2d at 652-53; see also 18 U.S.C. § 1964(c) (stating that a private plaintiff must be “injured in *667his business or property by reason of a violation of section 1962 [criminal RICO]”); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (describing that a RICO plaintiff must be “injured in his business or property by the conduct constituting the violation”). The contract that Sandoval claims was not renewed by the County was a 12-month discretionary public contract, and, according to the District Court, Sandoval’s third-party complaint did not demonstrate that the injury was directly related to third-party defendants’ alleged racketeering scheme. Janiszewski, 520 F.Supp.2d at 652-53. Additionally, the Court concluded that Sandoval’s other alleged injury, from the bribe he paid to Janiszewski and Searinci in exchange for the HCPA contract, could not be an actual injury to Sandoval because he obtained a business benefit in receiving millions from the mul-ti-year contract awards. Id. at 653-54.
We agree with the District Court’s analysis denying Sandoval’s request to amend his third-party complaint and its subsequent dismissal of that complaint. Thus, we conclude there was no error here.
III.
The District Court noted that Sandoval did not oppose the Federal Rule of Civil Procedure 12(b)(6) motion to dismiss his retaliation counterclaim, which fell under 42 U.S.C. § 1983. Janiszewski, 520 F.Supp.2d at 649. Nevertheless, it determined that the part of his First Amendment retaliation claim accrued in 2001, when the County refused to renew Sandoval’s contract, yet the counterclaim was filed in 2006, more than four years after the first alleged instance of retaliation. Id. at 650. This time frame is well beyond § 1983’s two-year statute of limitations, and Sandoval’s arguments for tolling are unpersuasive. See O’Connor v. Newark, 440 F.3d 125, 126-27 (3d Cir.2006). Accordingly, dismissal of the counterclaim as barred by the statute of limitations was not in error.
The second alleged retaliatory act was plaintiffs’ filing of the complaint in this action in 2006. Sandoval’s claim was not time-barred, but, according to the District Court, it failed to raise a necessary inference in the pleading that there was “a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir.2006). The Court concluded that “[m]ere unsupported conclusions and unwarranted inferences that Plaintiffs filed their civil RICO claims ... in retaliation for [Sandoval’s] role in the investigation [are] insufficient to withstand a motion to dismiss.” Janiszewski, 520 F.Supp.2d at 650-51 (internal quotations and citations omitted).
We are not sure whether Sandoval is appealing this ruling, but nevertheless we address it. Though we “must accept all factual allegations in [the] eomplaint[, or in this case, the counterclaim,] as true, [ ] we are not compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Baraka v. McGreevey, 481 F.3d 187,195 (3d Cir.2007) (internal quotations and citations omitted). We agree with the District Court and see nothing in Sandoval’s counterclaim beyond a general conclusory allegation of retaliation that would raise the required inference of a “causal link between” Sandoval’s exercise of his First Amendment rights (ie., cooperation with the criminal RICO investigation) and the retaliatory act (ie., filing of the civil RICO Complaint against Sandoval). In this context, the counterclaim would not survive a Rule 12(b)(6) motion. See Thomas, 463 F.3d at 296; see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2008) (noting that “[fjactual allegations *668must be enough to raise a right of relief above the speculative level”). We also conclude, for the reasons set forth in the Magistrate Judge’s December 2007 order, that the denial of Sandoval’s motion to file a second amended counterclaim on grounds of mootness and futility was not in error.
IV.
Sandoval’s motion to recuse District Judge Pisano accused the Judge of bias because of his previous affiliation with the law firm representing plaintiffs and his presiding over Janiszewski’s criminal trial. The District Court denied this motion. In noting that the legal standard for deciding whether to grant the motion to recuse lies within the trial judge’s discretion, see United States v. Wilensky, 757 F.2d 594, 599-600 (3d Cir.1985), the Court concluded that an affiliation with plaintiffs’ law firm 15 years prior to this case was an insufficient ground for recusal. See, e.g., Martin v. Monumental Life Ins. Co., 240 F.3d 223, 226 (3d Cir.2001). The Court also concluded that the disclosure of Sandoval’s name at Janiszewski’s guilty plea colloquy was not improper or a violation of any agreement. We have no evidence that the District Court abused its discretion in denying the motion for recusal, and thus its denial cannot be overturned.
* * * * * *
For the reasons stated above, we affirm.3
. We refer only to the District Court for ease of reference, but some of these claims incorporate the Magistrate Judge in this case as well.
. RICO is the Federal Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, and the New Jersey RICO Act, N.J.S.A. 2C:41-1. The civil RICO claims stem from an underlying federal criminal prosecution against Robert C. Janiszew-ski, a former County Executive, and other defendants. Janiszewski pled guilty that, while County Executive, he accepted bribes from the co-defendants and others in exchange for securing service contracts with Hudson County or other favors. Sandoval cooperated with the Government in the criminal investigation.
. All other claims are unpersuasive and do not merit further discussion.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474197/
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OPINION
AMBRO, Circuit Judge.
Between 2003 and 2006, Sharon A. Fini-zie brought five separate employment-discrimination actions against the Department of Veterans Affairs Medical Center (“VA”), alleging violations of Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991 42 U.S.C. § 2000e et seq. The District Court consolidated the different actions into one action in July 2007, and later granted summary judgment to the VA on each of Finizie’s claims. Finizie now appeals those grants of summary judgment, in addition to a prior order denying her motion to compel the production of discovery materials. We affirm all the judgments of the District Court.
I.
Because we write solely for the parties, we recite only the facts necessary to our decision. Finizie, a registered nurse, has worked for the VA since the late 1970s. *670She has held various positions during her time at the VA and currently works in the area of Quality Management (QM). She began participating in Equal Employment Opportunity (“EEO”) activity in May 1993.1 Her participation was continuous, at least up to the time of the District Court’s decision. This appeal relates to her second set of actions against the VA.2
The employment-discrimination claims at issue here stem from five separate incidents, each of which (according to Finizie) involved either retaliation for her prior EEO activity or gender discrimination. The various claims were brought in 2003, 2004, and 2006, but were held in civil suspense by the District Court pending the final outcome of all the associated administrative proceedings. The claims were ultimately consolidated in July 2007.
Finizie’s first employment-discrimination claim relates to the VA’s alleged delay in permanently assigning her to the position of QM Specialist. That position became vacant in February 2000, but was not offered to Finizie until February 2001. In the interim, Finizie performed QM Specialist duties, reported to the temporary QM Director and had the title of “QM Specialist of Neurology, Audiology, Dental,” but still technically remained outside of the QM Department. During that same period, the VA employed a part-time, temporary QM Specialist, whose contract it repeatedly renewed. Finizie alleges that the initial withholding of the permanent position from her, combined with the continued decision to employ a temporary employee also working in the QM area, amounted to a deliberate underuse of her skills in retaliation for her prior EEO activity.
Finizie’s second claim stems from her first round of litigation against the VA. After she appealed the 2002 judgment against her to our Court, the Director of the Third Circuit Mediation Program scheduled a mediation. In December 2002, the Director cancelled the mediation after reading the parties’ position papers, having concluded that mediation would be fruitless. In her subsequent complaint, Finizie alleged that the VA had, for retaliatory reasons, failed to engage her in a good-faith settlement process.
Finizie’s third and fourth claims both relate to her non-selection for the position of infection control nurse. In May 2002, the VA posted the job listing for that position. The hospital interviewed six people for the job and ranked Finizie fourth. The hospital offered the job to the top three candidates in order of ranking, each of whom turned it down. Instead of then offering the position to Finizie, who met the minimal qualifications, the hospital chose to offer the job, on an interim basis, to the first-choice candidate, who accepted the interim position. The hospital then reposted the position in January 2003. Finizie again applied and interviewed for the job. The hospital ultimately hired a male applicant for the position. Finizie subsequently brought two complaints related to this sequence of events — a retaliation claim for not hiring Finizie when the position was initially listed, and a gender-discrimination claim for hiring a man instead of her when the position was listed the second time.
Finizie’s final claim relates to her status as an ad hoc member of the VA Medical *671Center’s Infection Control Committee. She alleges that she was the only member of the Committee identified as merely an “ad hoc member,” and that the withholding of unrestricted membership status from her was retaliatory.
In October 2007, shortly after Finizie’s five claims were taken out of civil suspense and consolidated, the VA moved for summary judgment on each. Finizie responded by moving, under Federal Rule of Civil Procedure 56(f), for more discovery, naming seven people she wanted to depose. On February 1, 2008, the Court granted summary judgment to the VA on the claims relating to the VA’s alleged failure to negotiate in good faith, its initial refusal to hire her for the infection control nurse position, and its giving her ad hoc Infection Control Committee status.3 However, the Court granted Finizie’s Rule 56(f) motion with respect to Finizie’s remaining two claims (the ones relating to the VA’s alleged delay in placing her in a permanent QM position and its alleged discrimination in hiring a man for the infection control nurse position when it was listed the second time). The Court set a discovery period of February 1, 2008 to March 14, 2008 and gave the parties until March 21, 2008 to make motions for summary judgment.
On February 19, 2008, Finizie filed a motion to reconsider the District Court’s grants of summary judgment. The Court denied this motion three days later. Shortly thereafter, Finizie served a set of interrogatories and document requests on the VA relating to her remaining two claims. She received those responses on March 17. The VA moved for summary judgment on the remaining two claims on March 20. On March 31, Finizie filed a motion to compel, which the Court denied on April 1.4 The Court then granted summary judgment to the VA on the remaining claims on April 16, 548 F.Supp.2d 171. Finizie filed a motion for reconsideration of the grants of summary judgment on April 30, which the Court denied one week later. Finizie timely appealed.5
II.
To review the bidding, Finizie appeals both the denial of her motion to compel *672discovery materials and the various grants of summary judgment against her.
A.
She argues that the District Court erred in denying her motion to compel.6 A denial of a motion to compel is reviewed for “gross abuse of discretion.” Kinkead v. Southwestern Bell Tel. Co., 49 F.3d 454, 457 (8th Cir.1995); Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir.1993). We see nothing to suggest such an abuse of discretion here. The record clearly indicates that Finizie was given the opportunity to obtain the discovery she seeks and simply failed to do so.7 We thus affirm.8
B.
Next, Finizie argues that the District Court erred in concluding that she had not presented sufficient evidence of discrimination or retaliatory behavior to withstand summary judgment on any of her five employment-discrimination claims.9 In those claims, Finizie alleged *673that the VA: (1) retaliated against her when it delayed placing her in the permanent QM Specialist position, while at the same employing a temporary worker with similar responsibilities; (2) retaliated against her by failing to negotiate in good faith; (3) retaliated against her when it initially did not select her for the infection control nurse position, but instead filled the position on a temporary basis; (4) engaged in sex discrimination when it did not select her for the infection control nurse position the second time around and instead hired a man; and (5) retaliated against her when it made her an ad hoc Infection Control Committee member. We agree with the District Court that none of the claims should make it to a jury.
Each of Finizie’s claims is governed by the burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, Finizie bears the initial burden of establishing a prima facie case of discrimination. For her retaliation claims, this means that she must show, inter alia, that she suffered some adverse employment action at the hands of the VA. See Kachmar v. SunGard Data Sys. Inc., 109 F.3d 173 (3d Cir.1997). If Finizie succeeds in making out her pri-ma facie case, the burden of production (but not persuasion) then shifts to the VA to articulate a legitimate non-diseriminato-ry reason for the challenged action. If the VA does so, the burden shifts back to Finizie to show that the VA’s proffered reason is mere pretext. See McDonnell Douglas, 411 U.S. at 801-05, 93 S.Ct. 1817.
We start with Finizie’s delay/underuse claim. The VA has stated a legitimate, non-discriminatory reason for not assigning her the QM Specialist position until February 2001 — it did not receive permission to fill the vacancy on a permanent basis until that time. Finizie has offered nothing that could cause a reasonable jury to doubt that explanation. That also takes care of Finizie’s associated argument relating to the VA’s decision to continue to employ a temporary person with responsibilities that overlapped with Finizie’s area of competence. If that decision were unconnected to the delay in moving Finizie to the QM Specialist position, we do not see how it could have been an adverse employment action against Finizie. We thus affirm the grant of summary judgment on this claim.
Finizie’s claim alleging that the VA failed to negotiate in good faith in the Third Circuit mediation cannot succeed for an even simpler reason. The action she complains of — cancelling the mediation— was undertaken by the Director of the Third Circuit Mediation Program, not the VA. Thus, it cannot serve as the basis for an employment-discrimination against the VA.
Finizie’s third and fourth claims— the ones relating to her non-selection for the position of infection control nurse — fail at the third step of the McDonnell Douglas analysis. The legitimate, non-discriminatory reasons offered by the VA for not hiring her as an infection control nurse were that it (1) initially hired its first choice, albeit on a contract basis, and (2) when it hired a man the second time around it was because he had current infection control experience, while Finizie did not. Finizie’s various attempts to show that these explanations are mere pretext revolve around emphasizing her own qualifications for the position, not showing that the persons hired instead were demonstratively less qualified. It is well-established that, under Title VII, an “employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria.” Texas Dep’t of Cmty. Affairs v. Bur-*674dine, 450 U.S. 248, 259, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Thus, Finizie has failed to show that the VA’s proffered reasons are mere pretext.
Finally, Finizie’s claim stemming from her ad hoc committee status also cannot succeed. That is because being accorded ad hoc committee status was not a “materially adverse” action, and thus cannot serve as basis of an action for retaliation. See Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (“The antiretaliation provision [of Title VII] protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”). Finizie argues that being placed on this status constituted a “materially adverse” employment condition because all other committee members had rights to attend all of the meetings, participate in all discussions, and receive copies of the meeting minutes, while she was told that she only had to attend the meetings that involved subject matter relating to her position. That is not sufficient to qualify. See id. at 68, 126 S.Ct. 2405 (distinguishing between “material adversity” and “trivial harms” and following a “reasonable employee” standard to make that distinction). We thus find that Finizie fails even to state a prima facie case on this claim.
* * * * * *
For these reasons, we affirm the judgments of the District Court.
. She has participated in EEO activity on behalf of herself by filing various complaints and also on behalf of other employees by being a witness in their discrimination complaints against the VA. She refers to her history of protracted litigation and EEO activity as “legendary,” "tenacious” and "unrelenting.”
. In her first set of actions, which were consolidated in 2002, Finizie lost on ail of her claims. See Finizie v. Principi, Civil Action No. 00-3268, aff’d, 69 Fed.Appx. 571 (3d Cir. 2003).
. When the District Court consolidated these actions, it ordered Finizie to file an amended consolidated complaint incorporating the claims brought in her initial complaints. In her amended complaint, however, Finizie failed to divide her claims into separate counts. Accordingly, the Court referred to Finizie's initial complaints in its orders so as to identify clearly the claims on which it was granting summary judgment in favor of the VA.
. Later that same day, Finizie filed a motion to reconsider after the Court denied her motion to compel. The Court denied this motion to reconsider, citing the same reasons it gave when denying the initial motion to compel.
. The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.
As noted above, Finizie seeks to challenge on appeal (1) the District Court's grants of summary judgment on three of Finizie's claims on February 1, (2) its denial of her motion to compel on April 1, and (3) its grants of summary judgment on Finizie's two remaining claims on April 16. Technically, however, the final order from which Finizie appeals is the Court's May 6, 2008 denial of her motion to reconsider its grants of summary judgment on April 16. Thus, while our jurisdiction over the Court’s April 16 order was preserved, see LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 225 n. 6 (3d Cir.2007) (a notice of appeal that identifies only the order denying a motion for reconsideration “does not in itself deprive us of jurisdiction over the appeal from the underlying order on the summary judgment motions”), we must assess our jurisdiction over the additional orders Finizie seeks to challenge.
We are satisfied as to our jurisdiction to review these orders. A notice of appeal must "designate the judgment, order or part thereof being appealed.” Fed. R.App. P. *6723(c)(1)(B). However, we "liberally construe the requirements of Rule 3(c),” Pacitti by Pacitti v. Macy’s, 193 F.3d 766, 776 (3d Cir. 1999), and an appellant's “fail[ure] to refer specifically to earlier orders disposing of other claims ... does not preclude us from reviewing those orders.” Shea v. Smith, 966 F.2d 127, 129 (3d Cir. 1992). Moreover, because the District Court did not mention Federal Rule of Civil Procedure 54(b) in its February 1, 2008 grant of partial summary judgment — or make an express determination that there was “no just reason for delay,” Fed.R.Civ.P. 54(b) — we "cannot reasonably conclude that the ... Court intended to enter a partial final judgment pursuant to that Rule.” Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 144 (3d Cir.2001). Accordingly, we may review directly the Court's February 1 grants of summary judgment, as well as its denial of Finizie's motion to compel. See Drinkwater v. Union Carbide Corp., 904 F.2d 853, 858 (3d Cir.1990) (“[S]ince ... only a final judgment or order is appealable, the appeal from a final judgment draws in question all prior non-final orders and rulings.”) (quoting Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977)).
.Exactly what Finizie appeals on this issue is not clear, as this section of her brief merely recites the case's procedural history before concluding that "[t]he [Cjourt abused its discretion by thwarting Finizie's ability to develop a nuanced and factually complex case.” Finizie's Br. at 33. Our best guess is that she is appealing the denial of her motion to compel, as she never renewed her Rule 56(f) motion after it was partially granted and partially denied, and there does not appear to be any other order of the District Court to which this particular line of argument might be linked.
. In particular, instead of taking lull advantage of the six-week discovery period the District Court granted, Finizie waited for more than three weeks to serve interrogatories and document requests on the VA. After receiving the VA’s replies, Finizie waited another two weeks — after discovery had closed and after the deadline to file motions for summary judgment had passed — to request additional information from the VA and to file a motion to compel after the VA refused that request. In addition, there is no evidence in the record indicating that Finizie took, or attempted to take, any of the seven depositions that she asserted she needed in order to withstand a motion for summary judgment. Lastly, it appears that Finizie had approximately three and a half months for discovery in 2003-2004 relating to her delay of placement claim in addition to what the Court granted in February 2008.
. Finizie also alleges, as a distinct ground for appeal, that “The Trial Judge Exhibited Bias and Prejudice Against [her].” Finizie's Br. at 33. We see nothing to suggest bias or prejudice on the District Judge's part. On the contrary, the record indicates that the District Judge made every attempt to allow Finizie to build her case and that he treated her claims with great care. We caution Finizie's attorney about throwing such serious allegations around lightly.
. Our review of a District Court's grant of summary judgment is plenary. See Scheidemantle v. Slippery Rock Univ. State Sys., 470 F.3d 535, 538 (3d Cir.2006).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474199/
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OPINION
PER CURIAM.
Plaintiff Elizabeth Liggon-Redding appeals the District Court’s orders dismissing her three complaints. We have consolidated her two appeals for disposition and will affirm the District Court’s order of July 17, 2007 in (06-cv-3129). We will vacate the Court’s orders of March 7, 2008 in (06-cv-3129) and (07-cv-1863) and remand for further proceedings consistent with this opinion.
I.
An understanding of the complicated nature of the plaintiffs appeals requires a review of the background circumstances. Tyrone Redding is a disabled veteran of the Vietnam War. He receives compensation from the Department of Veterans Affairs (“VA”) which is payable to his mother Marlene Redding, who the VA has entrusted as his fiduciary. As a disabled veteran, Mr. Redding is also entitled to a property tax exemption under New Jersey law. See N.J.S.A. 54:4-3.30(a).
In 1977, Mr. Redding married plaintiff. They lived in property located at 82 Hamilton Lane in Willingboro Township, New Jersey.
Title to the 82 Hamilton Lane property had been transferred from Edgar Robin*676son to “Elizabeth House [the plaintiffs former name] in trust for Stewart A. Lig-gon, JR.” on October 31,1977.
On January 19, 1998, plaintiff conveyed the title to “T. N. Redding [her husband], Etux.” Plaintiff stated in the District Court that she transferred the property to Mr. Redding “so we could get the [veteran’s] property tax exemption.”
Willingboro Township’s Tax Assessor, William R. Tantum, denied Mr. Redding the tax exemption for several years on the basis that he had not established that 82 Hamilton Lane was his domicile. Tantum justified his decision with evidence that Mr. Redding spent a considerable amount of time at his mother’s home in Pennsylvania.
The tax dispute was finally resolved when the Superior Court of New Jersey, Appellate Division, held that Mr. Redding was entitled to the exemption. See Twp. of Willingboro v. Redding, No. A-5356-05T1, 2007 WL 250379, at *2 (N.J.Super.Ct.App.Div. Jan.31, 2007).
During the pendency of the tax case, the Reddings stated that they were going to sell the 82 Hamilton Lane premises,1 and they indeed conveyed it on June 30, 2006.
On July 16, 2006, plaintiff filed suit in the District Court. Her complaint, docketed at (06-cv-3127), named Fidelity National Title, Congress Title Division, the closing agent for the sale of the property; its parent company, Fidelity National Title Insurance Company; and Key Properties GMAC Real Estate, a real estate agency involved in the transaction, as defendants. She asserted that the Hamilton Lane property was sold without her consent and that she was defrauded into signing documents. She also claimed the right to $10,000 in an escrow account established at the settlement of the property. In a later proceeding before the District Court, plaintiff admitted that her husband received the proceeds of the sale of 82 Hamilton Lane and that Mr. Redding gave that money to the plaintiffs son Stewart.2
The District Court dismissed the complaint in (06-cv-3127) for lack of subject *677matter jurisdiction. Liggon-Redding v. Cong. Title, No. 06-3127, 2007 WL 432985, at *1 (D.N.J. Feb.1, 2007). On appeal, we dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). Liggon-Redding v. Cong. Title, 229 Fed.Appx. 105 (3d Cir.2007).
The present appeals involve three suits that plaintiff subsequently filed in the District Court. In the amended complaint filed at (06-cv-3129), Willingboro Township and Tantum are named as defendants. Plaintiff alleges that she and her husband were deprived of quiet enjoyment of their home because the Township and Tantum’s alleged discriminatory acts in attempting to collect taxes caused Mr. Redding to sell their house against her wishes.
The plaintiffs complaint at (07-cv-1863) asserted a RICO3 claim pursuant to 18 U.S.C. §§ 1961-1968 against Anthony Bal-boni, Linda Huller, Tahir Zaman, Kristine LaPointe, Charles Wexton, Esq., and Oren Klein, Esq. According to the complaint, Balboni, Huller, and Zaman are employed by Key Properties; LaPointe and Wexton are employees of Congress Title; and Klein misrepresented himself as an attorney for Key Properties. Plaintiff alleges that these defendants committed numerous acts of fraud in connection with the sale of the family home, “enlisted Willing-boro Police Officers to Harass, Frighten, and Threaten [plaintiff] into not pursuing Justice,” and “have all gotten together to try to cover up their ongoing fraudulent and illegal activities.”4
Her final complaint, which was originally entered in the District Court’s docket at (07-cv-1890) and subsequently consolidated with her suit at (06-cv-3129), asserted a RICO claim against Willingboro Township; Tantum; Willingboro police officers Landry, Kueny, and White; as well as numerous John Doe defendants. According to the complaint, the Township, Tan-tum, the named police officers, and the Doe defendants committed a series of wrongful acts against plaintiff and her family.
The District Court dismissed the plaintiffs amended complaint that was filed at (06-cv-3129) for lack of standing. Her complaints that were originally entered in the docket at (07-cv-1863) and (07-cv-1890) were dismissed as a sanction pursuant to Fed.R.Civ.P. 41(b)5 because the plaintiffs failure to comply with numerous Rules of Civil Procedure and court orders in prosecuting her complaints warranted “the extreme sanction of dismissal.”
II.
In deciding to impose the sanction of dismissal of the plaintiffs complaints that *678were filed at (07-cv-1863) and (07-cv-1890), the District Court considered the Poulis factors. See Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.1984). But a Rule 41(b) “[dismissal is a harsh remedy and should be resorted to in only extreme cases.” Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992) (quoting Marshall v. Sielaff, 492 F.2d 917, 918 (3d Cir.1974)). All doubts should be resolved in favor of reaching a decision on the merits. See Briscoe v. Klaus, 538 F.3d 252, 257 (3d Cir.2008).
The plaintiffs abusive language and failures to heed helpful suggestions have sorely taxed the patience of the District Court, whose restraint has been commendable. Nevertheless we prefer to address the merits in this case rather than impose sanctions.
The plaintiffs complaints at (07-cv-1863) and (07-cv-1890) contain two types of claims. The first consists of RICO claims. A necessary element of a cognizable RICO claim where the collection of an unlawful debt is not alleged is the presence of “a pattern of racketeering activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 232, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989).
A pattern of racketeering activity occurs when a defendant commits a set of predicate racketeering acts, see 18 U.S.C. § 1961(1), that “are related, and ... amount to or pose a threat of continued criminal activity.” Tabas v. Tabas, 47 F.3d 1280, 1292 (3d Cir.1995) (quoting H.J. Inc., 492 U.S. at 239, 109 S.Ct. 2893) (emphasis omitted). Continuity can be proved by showing “either ... a closed period of repeated conduct, or ... past conduct that by its nature projects into the future with a threat of repetition.” H.J. Inc., 492 U.S. at 241, 109 S.Ct. 2893.
We find no basis in the extensive pleadings in this case for any RICO claims. Plaintiff has not alleged a set of predicate racketeering acts that satisfy RICO’s continuity requirement. See id. at 242, 109 S.Ct. 2893 (“[predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy [RICO’s continuity] requirement”). She therefore has not stated a RICO claim upon which relief can be granted. Upon remand, the District Court shall dismiss the plaintiffs RICO claims pursuant to Rule 12(b)(6).
The second type of claim that appears in the complaints filed at (07-cv-1863) and (07-cv-1890) is one of the use of excessive force by the police against the plaintiff personally. She asserts that she was physically assaulted during arrests that occurred on August 29 and September 21, 2006.
A pro se complaint “is to be liberally construed ... and ... must be held to less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Accordingly, we conclude that the plaintiffs pleadings are sufficient to state an excessive force claim under 42 U.S.C. § 1983. The District Court shall reinstate this claim on remand.6
III.
The District Court’s dismissed the plaintiffs discrimination claim in (06-cv-3129) for lack of standing. We will affirm.
*679In her amended complaint at (06-cv-3129), plaintiff alleged that Willingboro Township and Tantum “attempt[ed] to take away the Veterans Tax Exemption which her husband is entitled to because of his service in Viet Nam” on the basis of Mr. Redding’s race and disability. When pressed by the District Court as to why she was the party bringing this claim, plaintiff stated that she had authority to bring the claim on behalf of Mr. Redding pursuant to a power-of-attorney agreement. However she was unable to prove that Mr. Redding was competent when he executed the alleged power-of-attorney agreement, and the District Court dismissed the complaint for lack of standing.
The District Court properly dismissed this complaint. Pro se plaintiffs are generally prohibited “from pursuing claims on behalf of others in a representative capacity.” Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir.2008). As this Court has observed, “[i]t goes without saying that it is not in the interest of ... incompetents that they be represented by non-attorneys.” Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 883 (3d Cir.1991) (quoting Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.1990)).
IV.
In sum, we will affirm the District Court’s July 17, 2007 order dismissing the plaintiffs amended complaint at (06-cv-3129). We will vacate the Court’s March 7, 2008 orders in (07-cv-1863) and (06-cv-3129) dismissing the plaintiffs complaints that were filed at dockets (07-cv-1863) and (07-cv-1890) pursuant to Rule 41(b) and remand for further proceedings in conformity with this opinion.
. At a May 23, 2006 hearing in front of the Tax Court of the State of New Jersey, Appellate Division, the following exchange occurred,
“The Court: Mr. And Mrs. Redding, you have to understand [Willingboro Township is] gonna keep on trying [to challenge Mr. Redding’s eligibility for a disabled veteran’s property tax exemption] and they're entitled to do that every year.
Mr. Redding: I’m selling that place [82 Hamilton Lane].
Ms. [Liggon-]Redding: Your — Your Hon- or, we’re moving. We’re selling the house and we’re gone. We’re not—
Mr. Redding: I'm not go[ing] through this.
The Court: Well—
Ms. [Liggon-]Redding: — go[ing] through this no more.
The Court: — that may make Mr. Tantum very happy, I don't know, but—
Ms. [Liggon-]Redding: And us too.
The Court: — but they do have the right to do it every year.
Ms. [Liggon-]Redding: Thank you, Your Honor.
The Court: Okay.
Mr. Redding: I'll be gone sometime this year.
Ms. [Liggon-]Redding: You got rid of us. We're out.
Mr. Redding: Thank you.
Ms. [Liggon-]Redding: Thank you so much. Yes, Mr. Tantum, you can collect taxes from the next people. We’re out. You got what you wanted. You wanted us out.
The Court: It’s been a really fruitful morning."
. The following exchange occurred at a June 1, 2007 hearing before the District Court:
“[The Court:] Who got the money from the sale [of 82 Hamilton Lane]?
[Mrs. Liggon-Redding:] My husband.
[The Court:] What did he do with the money?
*677[Mrs. Liggon-Redding:] He gave it to my son.”
. Racketeer Influenced and Corrupt Organizations Act, Pub.L. 91-452, 84 Stat. 941.
. On June 11, 2008, Mrs. Liggon-Redding also filed suit in the Superior Court of New Jersey, Burlington County, Chancery Division, against all of the defendants named in (07-cv-1863) except Klein. She asserted a claim to quiet title to 82 Hamilton Lane and a claim pursuant to the New Jersey Consumer Fraud Act, N.J.S.A. § 56:8-1 et seq. The case was dismissed with prejudice on September 12, 2008. Redding v. Fid. Nat’l Title, No. C-77-08, slip op. at 1 (N.J.Super. Ct. Burlington County Ch. Div. Sept. 12, 2008). The Court held that Mrs. Liggon-Redding’s claims were "barred by the doctrines of res judicata and collateral estoppel, as this matter is tantamount to re-litigation of the same claims and issues that have been raised and brought to final judgment on the merits [in the District Court].” Id. at 2. We are not aware of any appeal of that case.
.Fed.R.Civ.P. 41(b) provides, "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision ... operates as an adjudication on the merits.”
. We note that the plaintiff has not demonstrated any particularly objectionable conduct with respect to her excessive force claim.
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11-05-2022
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OPINION OF THE COURT
RENDELL, Circuit Judge.
This case comes to us on appeal from the District Court’s grant of summary judgment in favor of the defendants and against prisoner plaintiff Jose Baez, in this civil rights action under 42 U.S.C. § 1983. The District Court concluded that Baez’s suit was foreclosed under the Prison Litigation Reform Act of 1996 (“PLRA”), 42 U.S.C. § 1997e(a), which requires a prisoner to exhaust his administrative remedies before proceeding in federal court. The District Court determined that “exhaustion” did not occur because Baez transmitted a letter complaint to Bayside’s Internal Affairs division, but did not file an Administrative Remedy Form (“ARF”) at Bay-side or at his subsequent places of incarceration, Northern State Prison (“NSP”) and New Jersey State Prison (“NJSP”). However, we conclude that summary judgment was improper because material fact issues exist as to whether Baez exhausted available administrative remedies. Accordingly, we will vacate the order of the District Court and remand the case.
Because we write solely for the benefit of the parties, we confine our discussion to the facts salient to this appeal. The events underlying Baez’s suit occurred during a lockdown of Bayside prison, ordered after the death of a guard in July 1997. Baez contends that Bayside personnel beat him during the lockdown and resorted to threats and intimidation to dissuade him from submitting an ARF, required to initiate the grievance process. Plaintiffs Appendix (“P.A.”) 347, 358-59. Shortly thereafter, in September 1997, Baez hand-delivered a letter to Bayside’s Internal Affairs department, in which he complained that he was assaulted during the lockdown; Bayside found his claim to be unsubstantiated. P.A. 300, 334.1 At the same time, in October 1997, Baez was *681transferred from Bayside to NSP and, in July 1998, Baez was again transferred to NJSP, where he remained until September 2001. P.A. 280. At no time prior to filing suit did Baez submit an ARF. P.A. 285.
We exercise plenary review of the District Court’s grant of summary judgment, applying the same test that the District Court applied. Waldorf v. Shuta, 896 F.2d 723, 728 (3d Cir.1990). Whether there is an available administrative remedy is a question of law for the court to decide, which we review de novo. Brown v. Croak, 312 F.3d 109, 111 (3d Cir.2002); Snider v. Melindez, 199 F.3d 108, 113-14 (2d Cir.1999). Where subsidiary fact issues exist, we will draw all reasonable inferences in the light most favorable to the non-moving party, affirming the grant of summary judgment only if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. See Croak, 312 F.3d at 112; Snider, 199 F.3d at 114; Waldorf, 896 F.2d at 728.
The PLRA, 42 U.S.C. § 1997e(a), provides, “[n]o action shall be brought with respect to prison conditions under [§ 1983] or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” The PLRA’s exhaustion requirement applies to inmate suits involving excessive force. Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Because it is an affirmative defense, the burden of proving failure to exhaust rests with the defendant. Ray v. C.O. Kertes, 285 F.3d 287, 295 (3d Cir.2002).
Here, it is undisputed that Bayside provided an administrative remedy that covered Baez’s specific complaint; that to avail himself of this remedy under the regulations in effect at the time of his assault, Baez was required to file an ARF; and that Baez failed to do so when he transmitted, instead, a letter complaint to Bayside’s Internal Affairs department in September 1997. Finding these facts dispositive, the District Court granted summary judgment in favor of the defendants. Baez contends, however, that the District Court failed to address the fact that a parallel procedure was adopted by Bayside in January 1999 (“1999 procedure”) to track complaints regarding the 1997 lockdown. P.A. 555-59. In his deposition, James Dutch, a Bayside official, testified that in January 1999 Bayside began “converting” “all” inmate complaints regarding the 1997 lockdown — whatever their form and whenever sent — into ARFs.2 P.A. 555-59. Dutch explained, further, that these ARFs were then forwarded to the Special Investigations division for further consideration and possible response. Baez maintains that ARFs prepared by Bayside staff, on the one hand, and ARFs prepared by an inmate personally, on the other, were subject to the same administrative review, and enabled an inmate to access *682exactly the same remedies. Accordingly, Baez maintains that, practically speaking, he “exhausted” his administrative remedies when his letter complaint was converted to an ARF and forwarded to the Special Investigations division. We agree that Dutch’s testimony, which was not addressed by the District Court, raises multiple fact issues material to our exhaustion inquiry, including: (1) whether Bayside began accepting letter complaints in lieu of ARFs; (2) whether Baez’s letter to Internal Affairs was, in fact, converted to an ARF, forwarded to the Special Investigations division, and adjudicated by Bayside in a timely manner;3 (3) if so, whether Baez filed suit prematurely, or whether he properly awaited adjudication of his ARF before commencing his federal action;4 and (4) whether Bayside afforded identical administrative review and remedies for “converted” ARFs, such as Baez’s, and ARFs prepared personally by inmates. Because these fact issues bear directly on whether Baez properly exhausted his administrative remedies, and were not specifically addressed by the District Court, we will vacate the grant of summary judgment and will remand the case.
Our conclusion that the 1999 procedure raises material fact issues is buttressed by Judge Kugler’s decision in In re Bayside Litigation (Abbott), No. 08-127, a related action brought by another Bayside inmate, Joseph Abbott. Abbott, like Baez, transmitted a letter to Bayside complaining of misconduct during the 1997 lockdown instead of filing an ARF. Defendants moved for summary judgment under the PLRA. Relying on evidence identical to that presented here — Dutch’s deposition testimony — the District Court denied summary judgment.5 P.A. 668. We are cognizant that Abbott, unlike Baez, transmitted his letter complaint in September 1999— after Bayside began converting letter complaints to ARFs. However, given evidence that Bayside converted all inmate correspondence concerning the 1997 lockdown into ARFs, we cannot conclude, on the scant record before us, that this distinction necessarily means that Baez failed to exhaust his remedies.6
Two other fact questions raised by the evidence also require our remand of the case: whether Bayside personnel interfered with Baez’s access to the grievance system; and whether Baez should have filed a grievance at NJSP or NSP if the remedies were not indicated as being available for misconduct by personnel at other prisons.7
*683First, Baez introduced evidence sufficient for a reasonable jury to conclude that Bayside interfered with his access to the grievance system, by withholding remedy forms during the lockdown and by employing threats that would have deterred an “individual of ordinary firmness” from filing a complaint, thus rendering the ARF procedure unavailable at the time of the lockdown and before he was transferred. P.A. 300, 347, 526, 555, 558; see Hemphill v. New York, 380 F.3d 680, 688 (2d Cir.2004); see also Kaba v. Stepp, 458 F.3d 678, 684-85 (7th Cir.2006); Miller v. Norris, 247 F.3d 736, 740 (8th Cir.2001).8
Second, Baez introduced evidence from which a jury could rationally conclude that NJSP and NSP did not indicate the availability of procedures for filing complaints involving conditions at other institutions. Judge Kugler concluded that both NJSP and NSP afforded an administrative remedy applicable to Baez’s specific complaint; that this remedy, which entailed “referral” of the complaint to the appropriate institution, was not exhausted by Baez; and that Baez’s failure to avail himself of NJSP and NSP’s “referral” remedy was not excused by his fear of retaliation, as he encountered no threats at either institution. Defendants’ Appendix (“D.A.”) 61; P.A. 406. However, the District Court did not address evidence that this remedy was not reasonably communicated to Baez and, therefore, was practically “unavailable.” See Goebert v. Lee County, 510 F.3d 1312, 1323 (11th Cir.2007); see also Bryant v. Rich, 530 F.3d 1368, 1373 & n. 6 (11th Cir.2008); Ruggiero v. County of Orange, 467 F.3d 170, 178 (2d Cir.2006); cf. Croak, 312 F.3d at 113. No document apprised inmates that relief was available for conditions at other prisons. To the contrary, the NSP and NJSP inmate handbooks conveyed the opposite impression. The NSP handbook, for example, instructed inmates to use ARFs solely for “complaints regarding conditions within the jurisdiction of the institution that affect them personally.” P.A. 428-30 (emphasis added). The remedy section of the NJSP handbook, moreover, did not specify a procedure for filing complaints involving conditions at other institutions. P.A. 383.9 Indeed, an NJSP official testified that ARF forms were used primarily for complaints regarding conditions at NJSP, and that he could not recall a single occasion in which NJSP had handled a complaint involving conditions at another institution. D.A. 60; P.A. 383, 417. Hence, whether NJSP and NSP adequately communicated to Baez that remedies were available for misconduct by officials at Bayside presents a fact issue for the jury.
For the foregoing reasons, we conclude that summary judgment was improper, *684and that additional factual findings are required before it can be determined, as a matter of law, whether Baez failed to exhaust his administrative remedies. Accordingly, the order of the District Court will be VACATED, and the case REMANDED to the District Court for further proceedings consistent with this opinion.
. The record reflects that the letter was drafted by Baez on August 29, 1997, but marked "received” by Bayside on September 2, 1997. *681P.A. 334. Henceforth, we will refer to the date of receipt, not authorship.
. Defendants urge the Court to disregard Dutch's testimony, which they claim was not properly before Judge Kugler. Although Dutch's testimony was appended to a submission filed in a separate lawsuit, Baez expressly incorporated by reference Dutch's testimony in his own response brief. P.A. 670-71. Defendants contend that the District Court's denial of class certification precludes Baez from incorporating evidence from other Bay-side cases by reference. We find no logical relationship between the District Court’s denial of class certification, which dictates how plaintiffs' substantive claims are adjudicated, and Baez's right to incorporate evidence by reference — a means of eliminating duplicative attachments that has no impact on how issues are tried. Accordingly, Dutch's testimony was properly before Judge Kugler and, in turn, this Court.
. A prison must timely respond to inmate grievances, and thus Bayside could not postpone consideration of Baez's ARF indefinitely. See Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.2002); see also Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007); Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir.2001); Shah v. Quinlin, 901 F.2d 1241, 1243-44 (5th Cir.1990).
. In Woodford v. Ngo, the Supreme Court instructed that “proper” exhaustion requires that an inmate afford prison officials adequate “time and opportunity to address complaints internally” before filing suit. 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006).
. After noting that "as early as January 1999, administrators at Bayside State Prison were accepting prisoner complaints through means other than the administrative remedy form prescribed in the 1996 Bayside Prison Inmate Handbook, such as by letter or other informal means,” Judge Kugler concluded that hearings were required “to assess the impact of the newly presented evidence [from James Dutch] concerning the administrative remedy process in use at Bayside State prison during the relevant time period.” P.A. 668.
. We underscore that Baez violated no prison regulation by his delay, since, as Judge Kugler observed, Bayside did not require inmates to file ARFs within a specific timeframe.
. These fact issues are relevant only if the District Court concludes, on remand, that Baez did not exhaust his remedies at Bayside through the 1999 procedure. If Baez did so *683exhaust his remedies, then his suit may be maintained under the PLRA, and whether he could have availed himself of remedies allegedly available at NSP and NJSP is no longer relevant.
. Although Baez testified that he feared retaliation, he failed precisely to identify which defendants issued threats or engaged in other intimidation. Accordingly, we reject Baez's argument that defendants are equitably es-topped from urging exhaustion as an affirmative defense. See Hemphill, 380 F.3d at 689 (estoppel only applies to individual defendants who engaged in wrongdoing).
. The section of the NJSP handbook describing the Office of Ombudsman suggests that complaints involving conditions at other institutions should be raised not through the ARF process, as defendants assert, but rather through the Office of Ombudsman. P.A. 387 ("This Office [Office of the Ombudsman] was set up to help you in resolving problems and complaints which cannot be dealt with within the Institution.”) (emphasis added). The NSP handbook contains similar instructions. P.A. 408. Because defendants do not contend that Baez was required to file a grievance with the Office of the Ombudsman to exhaust his remedies, we do not analyze this issue.
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11-05-2022
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OPINION
PER CURIAM.
K. James Carpenter, proceeding pro se, filed an action in the District Court alleging misconduct and violations of the Civil Rights Act of 1866, the Fourteenth Amendment to the United States Constitution, and 42 U.S.C. §§ 1985-1988 by fifteen defendants, stemming from his purchase of rental property in Media, Pennsylvania, in 1994. The District Court dismissed his complaint. Carpenter appeals that decision. We will affirm.
I
Though Carpenter and the Appellees dispute numerous facts, the following facts are uncontroverted. Carpenter, a realtor, purchased commercial property from Eva Winters Johnson in 1994, subject to a mortgage. In 1997, Johnson brought suit to set aside the original transaction. The parties settled and reset the mortgage.
In a subsequent action filed by Ronald Ashby—an attorney assigned as trustee over the properties — related to the collection of rent from the Media properties, Magisterial District Judge Stephanie Klein rendered two judgments against Carpenter.
In 2001, Eva Winters Johnson’s estate filed suit in the Delaware County Court of Common Pleas to recover the property, alleging that Carpenter had defaulted on the mortgage. Judge James Proud ordered Carpenter to deed the property to Johnson’s estate. Judge Kathrynann Durham was subsequently assigned to the 2001 foreclosure action, and apparently either issued an order or rendered a judgment against Carpenter.
Also in 2001, Carpenter filed a complaint in the District Court that included a number of the same defendants to the present action, including the Borough of Media.1 *686See E.D. Pa. Civ. No. 01-CV-1828 (Surrick, J.). Carpenter’s 2001 complaint alleged that the Borough of Media instituted racially discriminatory zoning practices. In March 2002, the District Court dismissed all of Carpenter’s claims with prejudice. He appealed, and we dismissed the appeal as untimely. Carpenter v. Johnson, C.A. No. 05-3006 (order entered on November 3, 2005).
In April 2006, Carpenter filed the instant complaint for damages and injunctive relief against, inter alia, the Borough of Media and Magisterial District Judge Klein and Judge Proud, of the Delaware County Court of Common Pleas. Carpenter later amended his complaint to include, inter alia, Judge Durham of the Delaware County Court of Common Pleas. Each defendant filed a motion to dismiss. The District Court dismissed each claim pursuant to Federal Rule of Civil Procedure 12(b)(6). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
II
On appeal, Carpenter raises six arguments.2 Carpenter’s first four claims allege state court error during the foreclosure proceedings.3 Carpenter also claims that the District Court erred in dismissing his race discrimination claims against the Borough of Media and his judicial misconduct claims against the three judges of the Delaware County Court of Common Pleas.
State Court Claims
Inasmuch as Carpenter’s vague complaint can be read to include the state court error claims, this Court lacks jurisdiction to entertain them under the Rooker-Feldman doctrine. The Rooker-Feldman doctrine deprives federal courts of jurisdiction to entertain a claim “if the relief requested effectively would reverse a state court decision or void its ruling.” Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 192 (3d Cir.2006) (internal citations omitted). The doctrine applies only to the narrow class of “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the [federal] court proceedings commenced and inviting [federal] court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Here, Carpenter alleges that Judges Proud, Durham, and Klein erred in their rulings against him. Specifically, he claims that the state courts violated Pennsylvania law, as each judge’s decision constituted an “abuse of discretion,” an “error of law,” or a violation of the doctrines of res judicata and collateral estoppel. Because his claims amount to an invitation to review the state court decisions on grounds independent of constitutional or other federal law, we conclude that Carpenter’s claims are barred by Rooker-Feldman.4 Alternatively, to the *687extent that Carpenter presents claims on appeal that are not barred by Rooker-Feldman, but which were not raised in the District Court, such claims are barred from consideration. See Brown v. Philip Morris, Inc., 250 F.3d 789, 799 (3d Cir. 2001).
Race Discrimination Claims
Carpenter alleges that “[t]he Borough of Media committed racist discrimination against Appellant under the Civil Rights Act of 1866.” We construe this argument as a challenge to the District Court’s dismissal with prejudice of Carpenter’s claim that the Borough of Media conspired to discriminate against him because of his race.5 We exercise plenary review of a Rule 12(b)(6) dismissal. See Weston v. Pennsylvania, 251 F.3d 420, 425 (3d Cir.2001). We accept as true all factual allegations in the complaint and will affirm a dismissal under Rule 12 only if it is certain that the complaint fails to include sufficient factual matter to state a facially plausible claim to relief. See Ashcroft v. Iqbal, 556 U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Carpenter’s complaint identified 42 U.S.C. §§ 1985-1988 and 18 U.S.C. § 241 and § 242 as the grounds for his discrimination claim. Section 1985 requires a plaintiff to allege that invidious racial, or otherwise class-based, discriminatory animus lay behind the defendants’ actions, and he must set forth facts from which a conspiratorial agreement between the defendants can be inferred. See Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 267-68, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993). “[Mjere conclusory allegations of deprivations of constitutional rights are insufficient to state a § 1985(3) claim.” D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1377 (3d Cir.1992) (internal citations omitted); see also Iqbal, 129 S.Ct. at 1949-51 (applying the same rule to Bivens actions). The District Court reasoned that Carpenter failed to allege any facts from which to infer discriminatory animus, and that there are insufficient facts in his complaint to support an inference that a conspiratorial agreement between any parties existed. We agree.6
“In order to maintain a cause of action under § 1986, [a plaintiff] must show the existence of a § 1985 conspiracy.” Clark v. Clabaugh, 20 F.3d 1290, 1295 n. 5 (3d Cir.1994). As the District Court held, because Carpenter failed to sufficiently allege a § 1985 violation, he could not assert a cause of action under § 1986.
Likewise, Carpenter’s claims under § 1987 and § 1988 were properly dismissed. Section 1987 authorizes and requires certain federal officers to initiate prosecutions for particular violations. On its face, § 1987 does not authorize a private right of action. And Carpenter points to no authority suggesting that § 1987 implicitly authorizes a private right of action. Nor does § 1988 provide for a private cause of action. See Moor v. County of Alameda, 411 U.S. 693, 702, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973).
*688Finally, we agree with the District Court’s dismissal of the 18 U.S.C. § 241 and § 242 claims. Neither statute creates a civil cause of action. See, e.g., United States v. Philadelphia, 644 F.2d 187, 199 (3d Cir.1980).
Judicial Misconduct Claims
Carpenter contends that the District Court erroneously dismissed his complaint as to the three judicial defendants under the doctrine of judicial immunity because the defendants failed to affirmatively plead judicial immunity. This allegation is factually incorrect, as all three judicial defendants raised the judicial immunity doctrine in their Rule 12(b)(6) motions. See Doc. No. 48 (Judges Proud and Klein); Doc. No. 109 (Judge Durham). Moreover, the District Court correctly reasoned that these defendants are entitled to absolute judicial immunity.
Reply Brief Claims
In his reply brief, Carpenter for the first time raises claims as to the propriety of Judge Surrick’s conduct with regard to his 2001 case. We will not address claims in this appeal that Carpenter could have raised had he filed a timely appeal from the decision in his 2001 case.
Likewise, although Carpenter raised no claims related to Appellee Anderson in his initial brief, his reply brief alleges misconduct on Anderson’s part. We will not consider claims in the reply brief that Carpenter neglected to include in his initial appellate brief. See AFL-CIO v. Foster, 26 F.3d 375, 398 (3d Cir.1994).
Accordingly, we will affirm the decision of the District Court. All motions to supplement the record are denied. Raffo’s motion to dismiss Mr. Raffo as a party pursuant to Federal Rule of Appellate Procedure 43 (suggestion of death) is granted; the Clerk is directed to amend the caption. Wismer’s motion to quash the subpoena is granted in part, but denied as to the imposition of sanctions. Ashby’s motion for sanctions is denied.
. In the 2001 complaint, Carpenter named "Media Borough Zoning Ordinances” as a defendant. In the instant complaint, he refers to "Borough of Media” and "Media Borough Zoning Ordinances” interchangeably. *686Following the lead of Judge Surrick and Judge Dubois, we refer to the party solely as "Borough of Media.”
.In his notice of appeal, Carpenter states that he appeals all orders entered by the District Court in his case. Because Carpenter is an experienced litigant, we limit our consideration to the arguments raised in his appellate brief. Nevertheless, we remain mindful of our obligation to construe a pro se litigant’s pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
. These four claims are actually set out in seven statements — four in his "Statement of the Questions Involved,” and three in his "Summary of the Argument.” The latter three statements merely paraphrase the allegations in the "Statement of Questions Involved."
. Inasmuch as these claims were adequately raised before the District Court, the District Court also lacked jurisdiction to entertain them. See FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996).
. Carpenter’s complaint identified a different statutory basis, discussed below, for his race discrimination claim.
. Inasmuch as Carpenter's complaint can be construed to include a claim under the Civil Rights Act of 1866, i.e., 42 U.S.C. § 1981, the claim lacks merit for the same reason. To set forth a claim under § 1981, a plaintiff must allege, inter alia, "an intent to discriminate on the basis of race by the defendant.” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.1993). Here, Carpenter has not alleged any facts from which a discriminatory animus on the part of the Borough of Media might be inferred.
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OPINION
McKEE, Circuit Judge.
Pedro Gutierrez appeals the order of the district court denying his motion to dismiss the indictment pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure based on alleged violations of his speedy trial rights under the Sixth Amendment to the United States Constitution and the Speedy Trial Act, 18 U.S.C. § 3161. For the reasons set forth below, we will affirm.
I.
We review the district court’s legal conclusions de novo, but we review “the factual findings underpinning these legal conclusions ... for clear error.” Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991). We review the court’s decision to grant continuances for abuse of discretion. United States v. Fields, 39 F.3d 439, 444 (3d Cir.1994).
As we write primarily for the parties who are familiar with the facts of this case, *699we need not recite the factual or procedural history in detail.
Gutierrez argues that the district court abused its discretion in granting continuances under the test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 83 L.Ed.2d 101 (1972), and that his rights under the Speedy Trial Act were also violated.
II.
The Sixth Amendment requires the government to make a diligent, good faith effort to promptly bring a defendant to trial. Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). In Barker v. Wingo, the Supreme Court established a balancing test to determine when delays violated that Sixth Amendment right. Pursuant to that test, courts must consider: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. 2182.
The first Barker factor — the length of delay — triggers a speedy trial inquiry as there is no need to undertake a speedy trial analysis unless the length of any delay is sufficient to be “presumptively prejudicial.” Id. at 530, 92 S.Ct. 2182. The outcome of that initial inquiry depends on the facts and circumstances of each case. Id. at 530-31, 92 S.Ct. 2182 (finding that the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge). Generally, delays that approach twelve months are sufficient to trigger a speedy trial inquiry under Barker. See Doggett v. United States, 505 U.S. 647, 651 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Nevertheless, delay alone, is not sufficient to establish a speedy trial violation under the Sixth Amendment. See id.
Here, the time that lapsed between Gutierrez’s arraignment and trial is sufficient to warrant an inquiry under Barker. Accordingly, the district court appropriately considered each of the Barker factors, and concluded that Gutierrez’s right to a speedy trial under the Sixth Amendment had not been violated.
The court concluded that although Gutierrez did “timely and consistently assert[] his speedy trial rights,” both the second and fourth Barker factors weighed heavily against him. United States v. Gutierrez, No. 06-CR-582-4, 2007 WL 4302812, at *11 (E.D.Pa. December 6, 2007). The court found that there was a valid and significant reason to delay the trial and Gutierrez suffered no prejudice. We agree.
Plea negotiations were ongoing and they appeared to be progressing toward a non-trial disposition. More importantly, Gutierrez had filed twenty five pretrial motions, many of which required hearings, findings of fact, and memorandum opinions and orders. Gutierrez can not now complain because the court delayed his trial long enough to thoughtfully consider and dispose of the numerous motions he filed.
Moreover, the Supreme Court has identified the key interests that the Sixth Amendment is designed to protect, “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532, 92 S.Ct. 2182. The Court has stressed the last interest because delay can result in loss of defense witnesses or dim memories of witnesses whose recollection may be crucial to a credible defense. Id.
Yet, Gutierrez has not identified any specific prejudice resulting from his pretrial delay. He has not established that the delay jeopardized the testimony of any defense witness, nor can he argue that his pretrial detention was oppressive, or re*700sponsible for undue anxiety or concern. United States v. Gutierrez, No. 06-CR-582-4, 2007 WL 4302812, at *12 (E.D.Pa. December 6, 2007). On the contrary, the district court found that the delay inured to Gutierrez’s benefit because it facilitated his ability to defend himself by allowing time for the court to thoughtfully respond to his pretrial motions.
III.
Similarly, the district court did not abuse its discretion in granting a continuance under the 70-day requirement in the Speedy Trial Act. The Speedy Trial Act requires that a defendant be brought to trial 70 days from the date of information, indictment, or arraignment, whichever occurs last. 18 U.S.C. § 3161(c)(1). The statute, however, provides exceptions for certain types of delays. 18 U.S.C. 3161(h). The district court found that at least three of these exceptions applied here.
The court found that the delay was justified under 18 U.S.C. § 3161(h)(8)(A), which allows for a delay if the “ends of justice” served by the delay outweigh the interests of the public and the defendant in a speedy trial. A district court is “required to set out its reasons for granting an ‘ends of justice’ continuance” to provide a record for appellate review, otherwise “the time is not excludible.” United States v. Brooks, 697 F.2d 517, 520 (3d Cir.1982). Additionally, once a district court grants a continuance we have “strongly urged” district courts “not to wait and rely on counsel to inform them when defendants are ready to go to trial.” United States v. Lattany, 982 F.2d 866, 883 (3d Cir.1992).
Here, the district court ruled that this was a complex case because of the number of defendants, and the fact that the indictment contained fifty separate charges. See United States v. Fields, 39 F.3d 439, 444 (3d Cir.1994) (holding that an “ends of justice” continuance may be appropriate where the case is “unusual or complex”). Although Gutierrez attempts to refute that finding as to him by arguing that he was only charged in three counts, that does not reduce the overall complexity of the case. He does not complain that his case should have been severed to allow a more prompt resolution of his charges, and the record would not support a finding of prejudice even if he made such a claim. Moreover, the court outlined specific deadlines for pre-trial matters, scheduled a definitive new date for the trial, and adequately explained its reasons for granting an “ends of justice” continuance.
We also agree with the district court’s conclusion that the delay was justified under 18 U.S.C. § 3161(h)(1)(F), which allows delay resulting from the filing and deciding of pretrial motions. As the district court noted, “[ajlthough Gutierrez objected to both continuances, he also took advantage of the time they provided, filing over two dozen pretrial motions.” United States v. Gutierrez, No. 06-CR-582-4, 2007 WL 4302812, at *15 (E.D.Pa. December 6, 2007).
The district court also applied the exception that allows for delay beyond the 70 day period where it would be unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself, 18 U.S.C. § 3161 (h)(8)(B)(ii). Pointing to the approximately 47,000 pages of discovery provided by the government, the district court reasoned a continuance was necessary “to alleviate the burdensome discovery in this case by providing the defendants ample time to review the government’s evidence against them.” That was clearly not only reasonable, but necessary for a fair resolution of the charges in the indictment.
*701IV.
For the foregoing reasons, we will affirm the orders of the district court denying Gutierrez’s motion to dismiss the indictment.
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OPINION
PER CURIAM.
Petitioner Andrei Kheinovich Tiit, a native and citizen of Estonia, seeks review of a final order of removal. For the reasons discussed below, we conclude that we lack jurisdiction over the agency’s decision with regard to the timeliness of Tiit’s asylum claim, and that Tiit has waived any challenge to the agency’s denial of his claims for withholding of removal and relief under the Convention Against Torture (“CAT”). As a result, we will deny the petition for review.
*702I.
Tiit entered the United States in August 2000, and was given authorization to stay until February 14, 2001. Tiit, however, did not leave at that time. On November 20, 2003, Tiit filed an application for asylum, withholding of removal and relief under the CAT. He alleged past and prospective persecution based on his efforts to stop corrupt practices in the Estonian prison he was employed at from 1995 through 2000.
Tiit testified before the IJ that some prison officials worked with prisoners to smuggle contraband into the prison, that he received threats over the phone to both his personal and his family’s safety, and that when he reported the corruption to prison officials they simply ignored him. In addition, Tiit testified that in December 1997, three unknown assailants came to his carpentry shop and broke three of his fingers with a piece of wood. Shortly after Tiit reported the incident to the police, his father was allegedly murdered. Tiit also testified that he was coerced into attending a meeting wherein he was told that unless he cooperated with the criminal enterprise at the prison, his family would be killed. At that point, Tiit decided that it was not safe for him and his family to remain in Estonia, and he left for the United States. His wife, who was pregnant at the time of Tiit’s departure, came to the United States roughly one year later.
The IJ determined that Tiit was not entitled to any of the requested relief. The IJ first found that Tiit had failed to file his application for asylum within the one-year deadline, and that there were insufficient grounds to waive the deadline. The IJ also found that Tiit’s testimony with regard to past persecution was not credible and lacked support in the record. The BIA dismissed Tiit’s appeal. For substantially the reasons given by the IJ, it concluded that the IJ’s adverse credibility determination was not clearly erroneous, that the harm Tiit claimed to have suffered “did not rise to the level of persecution[,] and that there [was] insufficient evidence to show a clear probability of persecution or torture if forced to return to Estonia.” Tiit filed this petition for review.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir.2001). However, we lack jurisdiction to review the BIA’s determination that Tiit’s application for asylum is untimely. See 8 U.S.C. § 1158(a)(3) (stating that “[n]o court shall have jurisdiction to review any determination of the Attorney General” relating to the timeliness of an asylum application); Sukwanputra v. Gonzales, 434 F.3d 627, 633 (3d Cir.2006). Therefore, the scope of our review is limited to Tiit’s claims for withholding of removal and CAT relief. See Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir.2003).1
III.
We conclude that Tiit, who is represented by counsel, has effectively waived his challenge to the denial of his withholding and CAT claims. See Ghana v. Holland, 226 F.3d 175, 180 (3d Cir.2000); Host v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993). As the Government rightly observes, “Tiit mentions the denial of his withholding of removal claim in the ‘Summary of the Argument’ portion of his brief, and asserts in a sub-caption in the argument section that he presented ‘sufficient evidence’ that he will be tortured if he *703returns to Estonia, but he presents no substantive argument in the body of his brief to support either claim.” (Gov’t Br. at 18-19.) We have noted in similar circumstances that “Rule 28(a) of the Federal Rules of Appellate Procedure and our Local Appellate Rule 28.1(a) require appellants to set forth the issues raised on appeal and to present an argument in support of those issues in their opening brief.” Ghana, 226 F.3d at 180. Having failed to comply with those rules, Tiit has “abandoned and waived” his non-asylum claims.2 Kost, 1 F.3d at 182.
Accordingly, we will deny the petition for review.
. Although Tiit failed to raise his CAT claim we have jurisdiction to consider this claim because the BIA addressed it sua sponte. See Lin v. Att’y Gen., 543 F.3d 114, 123-24 (3d Cir.2008).
. Even without this waiver, we would still deny Tiit’s petition for review. The agency’s adverse credibility determination is supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Issiaka v. Att’y Gen., 569 F.3d 135, 137 (3d Cir.2009) (internal quotation marks omitted). And the record fails to demonstrate that it is “more likely than not” that Tiit will be tortured by, “at the instigation off,] or with the consent or acquiescence of a public official or other person acting in an official capacity.” Pierre v. Att'y Gen., 528 F.3d 180, 186, 189 (3d Cir.2008) (en banc) (internal quotation marks omitted); 8 C.F.R. §§ 208.17(a), 208.18(a)(1).
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OPINION
AMBRO, Circuit Judge.
Appellants Oscar Sandoval, M.D., and entities he controls, Hudson County Psychiatric Associates (“HCPA”) and Oscar Sandoval M.D., P.C. (collectively “Sando*665val”), appeal multiple orders of the District Court. We affirm on all claims. What Sandoval appeals is not clearly defined, which has been a principal problem of his submissions throughout this case. See, e.g., Supp.App. at 300 (Magistrate Judge describing Sandoval’s “moving papers” as “confusing”). Generally, Sandoval’s arguments concern his third-party complaint, counterclaims, and motion for recusal. Though his brief is indecipherable in certain parts, he argues, among other things, that the District Court erred in denying his motion for leave to amend the third-party complaint and dismissing that complaint with prejudice, dismissing his counterclaim and denying his motion for leave to file a second amendment to the counterclaim, and failing to grant his motion for recusal.1 See Sandoval Br. at 1-2.
Because we write for the parties, we will discuss only the most pertinent facts and briefly outline the relevant procedural history that concerns an alleged public corruption RICO scandal involving Sandoval’s psychiatric contracts with Hudson County, New Jersey.2 The initial action was filed by Hudson County, its County Executive and Board of Chosen Freeholders, among others, against Robert C. Janiszewski— individually and in his prior capacity as Hudson County Executive — Western Surety Company, Sandoval, and others. Plaintiffs principally alleged civil violations of RICO and its New Jersey counterpart, among other statutory and common law claims. They also sought a declaratory judgment against Western Surety.
The complaint’s allegations against Sandoval were that, from 1995 through 2000, he paid approximately $40,000 in bribes and gratuities to Janiszewski. In exchange, Janiszewski recommended the renewal and extension of Sandoval’s County psychiatric contracts. Consequently, Sandoval was awarded over $7 million in County contracts between 1996 and 2001. In response, Sandoval’s answer raised a civil federal and New Jersey RICO counterclaim against plaintiffs for retaliation arising out of his cooperation in the federal criminal RICO prosecution.
Sandoval also filed a third-party complaint against Appellee Donald Scarinci (an attorney), Janiszewski, and other Hudson County officials. Similar to his counterclaim, Sandoval alleged civil federal and New Jersey RICO claims stemming from the third-party defendants’ purported extortion in exchange for awarding County contracts to Sandoval and subsequent retaliation against him for his participation in the criminal RICO prosecution. The alleged retaliation involved “baseless” Hudson County prosecutor investigations and the failure to renew his County contracts in 2001. Sandoval sought leave to amend his third-party complaint to add a U.S. Senator and another individual as third-party defendants. The District Court dismissed this motion without prejudice due to ongoing settlement discussions.
After settlement discussions failed to dispose of the case, the motion to amend was deemed refiled and plaintiffs and sev*666eral third-party defendants filed briefs opposing it. In September 2007, the District Court determined that the proposed motion was futile under Federal Rules of Civil Procedure 14(a) and 15(a) because the claims against the proposed third-party defendants would not survive a Rule 12(b)(6) motion to dismiss.
In November 2007, the Court issued an order and thorough opinion dismissing with prejudice (i) the federal and New Jersey RICO claims in the Complaint (Counts I through IV) because they were time-barred, (ii) Sandoval’s counterclaims, and (iii) Sandoval’s third-party complaint. See County of Hudson v. Janiszewski, 520 F.Supp.2d 631, 654 (D.N.J.2007). It also denied Sandoval’s motion for reconsideration. Thereafter, in December 2007, it denied Sandoval’s motion for leave to file a second amended counterclaim because the motion was moot in light of the Court’s decision dismissing the counterclaims and the proposed amendments were futile.
Sandoval also filed a motion to recuse presiding District Court Judge Pisano pursuant to 28 U.S.C. § 455(a). The Court denied this motion and denied Sandoval’s motion for reconsideration. We denied his subsequent petition for a writ of mandamus.
In January 2008, the Court dismissed the entire action based on a settlement, and sua sponte declined to exercise supplemental jurisdiction over any remaining state statutory or common law claims, cross-claims, and counterclaims.
I.
Our standard of review over the District Court’s dismissal under Federal Rule of Civil Procedure 12(b)(6) is plenary. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996). We review a denial of a motion for leave to amend a complaint or a claim for abuse of discretion. Krantz v. Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d Cir.2002). Similarly, the District Court’s denial of a motion to recuse is reviewed for abuse of discretion. Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir.2000) (noting that a “judge is required to recuse where his or her impartiality ‘might reasonably be questioned’ ”) (citation omitted).
II.
In a thorough opinion, the District Court denied Sandoval’s motion to amend his third-party complaint because to do so would be futile. See Supp.App. at 186-92; see also County of Hudson v. Janiszewski, No. 06-319, 2007 WL 2688882, at *1-6 (D.N.J. Sept. 13, 2007). “An amendment is futile if the amended complaint would not survive a motion to dismiss.... ” Alvin v. Suzuki 227 F.3d 107, 121 (3d Cir.2000). The Court recognized that the motion was governed by Federal Rule of Civil Procedure 15, dealing with amendments of pleadings before trial, and Rule 14, the Rule governing third-party claims. The Court concluded that Sandoval’s proposed amendments failed to meet the indemnification or contribution requirements of Rule 14 because the amendments alleged an independent claim, see, e.g., Fed. Deposit Ins. Corp. v. Bathgate, 27 F.3d 850, 873 (3d Cir.1994), and there is no right to indemnification or contribution under RICO, see, e.g., Friedman v. Hartmann, 787 F.Supp. 411, 415 (S.D.N.Y.1992).
Thereafter, the District Court dismissed Sandoval’s third-party complaint. See Janiszewski, 520 F.Supp.2d at 654. It determined that Sandoval did not have standing under civil RICO, 18 U.S.C. § 1964(c), because the alleged RICO violations did not proximately cause his injuries. Janiszewski 520 F.Supp.2d at 652-53; see also 18 U.S.C. § 1964(c) (stating that a private plaintiff must be “injured in *667his business or property by reason of a violation of section 1962 [criminal RICO]”); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (describing that a RICO plaintiff must be “injured in his business or property by the conduct constituting the violation”). The contract that Sandoval claims was not renewed by the County was a 12-month discretionary public contract, and, according to the District Court, Sandoval’s third-party complaint did not demonstrate that the injury was directly related to third-party defendants’ alleged racketeering scheme. Janiszewski, 520 F.Supp.2d at 652-53. Additionally, the Court concluded that Sandoval’s other alleged injury, from the bribe he paid to Janiszewski and Searinci in exchange for the HCPA contract, could not be an actual injury to Sandoval because he obtained a business benefit in receiving millions from the mul-ti-year contract awards. Id. at 653-54.
We agree with the District Court’s analysis denying Sandoval’s request to amend his third-party complaint and its subsequent dismissal of that complaint. Thus, we conclude there was no error here.
III.
The District Court noted that Sandoval did not oppose the Federal Rule of Civil Procedure 12(b)(6) motion to dismiss his retaliation counterclaim, which fell under 42 U.S.C. § 1983. Janiszewski, 520 F.Supp.2d at 649. Nevertheless, it determined that the part of his First Amendment retaliation claim accrued in 2001, when the County refused to renew Sandoval’s contract, yet the counterclaim was filed in 2006, more than four years after the first alleged instance of retaliation. Id. at 650. This time frame is well beyond § 1983’s two-year statute of limitations, and Sandoval’s arguments for tolling are unpersuasive. See O’Connor v. Newark, 440 F.3d 125, 126-27 (3d Cir.2006). Accordingly, dismissal of the counterclaim as barred by the statute of limitations was not in error.
The second alleged retaliatory act was plaintiffs’ filing of the complaint in this action in 2006. Sandoval’s claim was not time-barred, but, according to the District Court, it failed to raise a necessary inference in the pleading that there was “a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir.2006). The Court concluded that “[m]ere unsupported conclusions and unwarranted inferences that Plaintiffs filed their civil RICO claims ... in retaliation for [Sandoval’s] role in the investigation [are] insufficient to withstand a motion to dismiss.” Janiszewski, 520 F.Supp.2d at 650-51 (internal quotations and citations omitted).
We are not sure whether Sandoval is appealing this ruling, but nevertheless we address it. Though we “must accept all factual allegations in [the] eomplaint[, or in this case, the counterclaim,] as true, [ ] we are not compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Baraka v. McGreevey, 481 F.3d 187,195 (3d Cir.2007) (internal quotations and citations omitted). We agree with the District Court and see nothing in Sandoval’s counterclaim beyond a general conclusory allegation of retaliation that would raise the required inference of a “causal link between” Sandoval’s exercise of his First Amendment rights (ie., cooperation with the criminal RICO investigation) and the retaliatory act (ie., filing of the civil RICO Complaint against Sandoval). In this context, the counterclaim would not survive a Rule 12(b)(6) motion. See Thomas, 463 F.3d at 296; see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2008) (noting that “[fjactual allegations *668must be enough to raise a right of relief above the speculative level”). We also conclude, for the reasons set forth in the Magistrate Judge’s December 2007 order, that the denial of Sandoval’s motion to file a second amended counterclaim on grounds of mootness and futility was not in error.
IV.
Sandoval’s motion to recuse District Judge Pisano accused the Judge of bias because of his previous affiliation with the law firm representing plaintiffs and his presiding over Janiszewski’s criminal trial. The District Court denied this motion. In noting that the legal standard for deciding whether to grant the motion to recuse lies within the trial judge’s discretion, see United States v. Wilensky, 757 F.2d 594, 599-600 (3d Cir.1985), the Court concluded that an affiliation with plaintiffs’ law firm 15 years prior to this case was an insufficient ground for recusal. See, e.g., Martin v. Monumental Life Ins. Co., 240 F.3d 223, 226 (3d Cir.2001). The Court also concluded that the disclosure of Sandoval’s name at Janiszewski’s guilty plea colloquy was not improper or a violation of any agreement. We have no evidence that the District Court abused its discretion in denying the motion for recusal, and thus its denial cannot be overturned.
* * * * * *
For the reasons stated above, we affirm.3
. We refer only to the District Court for ease of reference, but some of these claims incorporate the Magistrate Judge in this case as well.
. RICO is the Federal Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, and the New Jersey RICO Act, N.J.S.A. 2C:41-1. The civil RICO claims stem from an underlying federal criminal prosecution against Robert C. Janiszew-ski, a former County Executive, and other defendants. Janiszewski pled guilty that, while County Executive, he accepted bribes from the co-defendants and others in exchange for securing service contracts with Hudson County or other favors. Sandoval cooperated with the Government in the criminal investigation.
. All other claims are unpersuasive and do not merit further discussion.
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OPINION
AMBRO, Circuit Judge.
Between 2003 and 2006, Sharon A. Fini-zie brought five separate employment-discrimination actions against the Department of Veterans Affairs Medical Center (“VA”), alleging violations of Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991 42 U.S.C. § 2000e et seq. The District Court consolidated the different actions into one action in July 2007, and later granted summary judgment to the VA on each of Finizie’s claims. Finizie now appeals those grants of summary judgment, in addition to a prior order denying her motion to compel the production of discovery materials. We affirm all the judgments of the District Court.
I.
Because we write solely for the parties, we recite only the facts necessary to our decision. Finizie, a registered nurse, has worked for the VA since the late 1970s. *670She has held various positions during her time at the VA and currently works in the area of Quality Management (QM). She began participating in Equal Employment Opportunity (“EEO”) activity in May 1993.1 Her participation was continuous, at least up to the time of the District Court’s decision. This appeal relates to her second set of actions against the VA.2
The employment-discrimination claims at issue here stem from five separate incidents, each of which (according to Finizie) involved either retaliation for her prior EEO activity or gender discrimination. The various claims were brought in 2003, 2004, and 2006, but were held in civil suspense by the District Court pending the final outcome of all the associated administrative proceedings. The claims were ultimately consolidated in July 2007.
Finizie’s first employment-discrimination claim relates to the VA’s alleged delay in permanently assigning her to the position of QM Specialist. That position became vacant in February 2000, but was not offered to Finizie until February 2001. In the interim, Finizie performed QM Specialist duties, reported to the temporary QM Director and had the title of “QM Specialist of Neurology, Audiology, Dental,” but still technically remained outside of the QM Department. During that same period, the VA employed a part-time, temporary QM Specialist, whose contract it repeatedly renewed. Finizie alleges that the initial withholding of the permanent position from her, combined with the continued decision to employ a temporary employee also working in the QM area, amounted to a deliberate underuse of her skills in retaliation for her prior EEO activity.
Finizie’s second claim stems from her first round of litigation against the VA. After she appealed the 2002 judgment against her to our Court, the Director of the Third Circuit Mediation Program scheduled a mediation. In December 2002, the Director cancelled the mediation after reading the parties’ position papers, having concluded that mediation would be fruitless. In her subsequent complaint, Finizie alleged that the VA had, for retaliatory reasons, failed to engage her in a good-faith settlement process.
Finizie’s third and fourth claims both relate to her non-selection for the position of infection control nurse. In May 2002, the VA posted the job listing for that position. The hospital interviewed six people for the job and ranked Finizie fourth. The hospital offered the job to the top three candidates in order of ranking, each of whom turned it down. Instead of then offering the position to Finizie, who met the minimal qualifications, the hospital chose to offer the job, on an interim basis, to the first-choice candidate, who accepted the interim position. The hospital then reposted the position in January 2003. Finizie again applied and interviewed for the job. The hospital ultimately hired a male applicant for the position. Finizie subsequently brought two complaints related to this sequence of events — a retaliation claim for not hiring Finizie when the position was initially listed, and a gender-discrimination claim for hiring a man instead of her when the position was listed the second time.
Finizie’s final claim relates to her status as an ad hoc member of the VA Medical *671Center’s Infection Control Committee. She alleges that she was the only member of the Committee identified as merely an “ad hoc member,” and that the withholding of unrestricted membership status from her was retaliatory.
In October 2007, shortly after Finizie’s five claims were taken out of civil suspense and consolidated, the VA moved for summary judgment on each. Finizie responded by moving, under Federal Rule of Civil Procedure 56(f), for more discovery, naming seven people she wanted to depose. On February 1, 2008, the Court granted summary judgment to the VA on the claims relating to the VA’s alleged failure to negotiate in good faith, its initial refusal to hire her for the infection control nurse position, and its giving her ad hoc Infection Control Committee status.3 However, the Court granted Finizie’s Rule 56(f) motion with respect to Finizie’s remaining two claims (the ones relating to the VA’s alleged delay in placing her in a permanent QM position and its alleged discrimination in hiring a man for the infection control nurse position when it was listed the second time). The Court set a discovery period of February 1, 2008 to March 14, 2008 and gave the parties until March 21, 2008 to make motions for summary judgment.
On February 19, 2008, Finizie filed a motion to reconsider the District Court’s grants of summary judgment. The Court denied this motion three days later. Shortly thereafter, Finizie served a set of interrogatories and document requests on the VA relating to her remaining two claims. She received those responses on March 17. The VA moved for summary judgment on the remaining two claims on March 20. On March 31, Finizie filed a motion to compel, which the Court denied on April 1.4 The Court then granted summary judgment to the VA on the remaining claims on April 16, 548 F.Supp.2d 171. Finizie filed a motion for reconsideration of the grants of summary judgment on April 30, which the Court denied one week later. Finizie timely appealed.5
II.
To review the bidding, Finizie appeals both the denial of her motion to compel *672discovery materials and the various grants of summary judgment against her.
A.
She argues that the District Court erred in denying her motion to compel.6 A denial of a motion to compel is reviewed for “gross abuse of discretion.” Kinkead v. Southwestern Bell Tel. Co., 49 F.3d 454, 457 (8th Cir.1995); Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir.1993). We see nothing to suggest such an abuse of discretion here. The record clearly indicates that Finizie was given the opportunity to obtain the discovery she seeks and simply failed to do so.7 We thus affirm.8
B.
Next, Finizie argues that the District Court erred in concluding that she had not presented sufficient evidence of discrimination or retaliatory behavior to withstand summary judgment on any of her five employment-discrimination claims.9 In those claims, Finizie alleged *673that the VA: (1) retaliated against her when it delayed placing her in the permanent QM Specialist position, while at the same employing a temporary worker with similar responsibilities; (2) retaliated against her by failing to negotiate in good faith; (3) retaliated against her when it initially did not select her for the infection control nurse position, but instead filled the position on a temporary basis; (4) engaged in sex discrimination when it did not select her for the infection control nurse position the second time around and instead hired a man; and (5) retaliated against her when it made her an ad hoc Infection Control Committee member. We agree with the District Court that none of the claims should make it to a jury.
Each of Finizie’s claims is governed by the burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, Finizie bears the initial burden of establishing a prima facie case of discrimination. For her retaliation claims, this means that she must show, inter alia, that she suffered some adverse employment action at the hands of the VA. See Kachmar v. SunGard Data Sys. Inc., 109 F.3d 173 (3d Cir.1997). If Finizie succeeds in making out her pri-ma facie case, the burden of production (but not persuasion) then shifts to the VA to articulate a legitimate non-diseriminato-ry reason for the challenged action. If the VA does so, the burden shifts back to Finizie to show that the VA’s proffered reason is mere pretext. See McDonnell Douglas, 411 U.S. at 801-05, 93 S.Ct. 1817.
We start with Finizie’s delay/underuse claim. The VA has stated a legitimate, non-discriminatory reason for not assigning her the QM Specialist position until February 2001 — it did not receive permission to fill the vacancy on a permanent basis until that time. Finizie has offered nothing that could cause a reasonable jury to doubt that explanation. That also takes care of Finizie’s associated argument relating to the VA’s decision to continue to employ a temporary person with responsibilities that overlapped with Finizie’s area of competence. If that decision were unconnected to the delay in moving Finizie to the QM Specialist position, we do not see how it could have been an adverse employment action against Finizie. We thus affirm the grant of summary judgment on this claim.
Finizie’s claim alleging that the VA failed to negotiate in good faith in the Third Circuit mediation cannot succeed for an even simpler reason. The action she complains of — cancelling the mediation— was undertaken by the Director of the Third Circuit Mediation Program, not the VA. Thus, it cannot serve as the basis for an employment-discrimination against the VA.
Finizie’s third and fourth claims— the ones relating to her non-selection for the position of infection control nurse — fail at the third step of the McDonnell Douglas analysis. The legitimate, non-discriminatory reasons offered by the VA for not hiring her as an infection control nurse were that it (1) initially hired its first choice, albeit on a contract basis, and (2) when it hired a man the second time around it was because he had current infection control experience, while Finizie did not. Finizie’s various attempts to show that these explanations are mere pretext revolve around emphasizing her own qualifications for the position, not showing that the persons hired instead were demonstratively less qualified. It is well-established that, under Title VII, an “employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria.” Texas Dep’t of Cmty. Affairs v. Bur-*674dine, 450 U.S. 248, 259, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Thus, Finizie has failed to show that the VA’s proffered reasons are mere pretext.
Finally, Finizie’s claim stemming from her ad hoc committee status also cannot succeed. That is because being accorded ad hoc committee status was not a “materially adverse” action, and thus cannot serve as basis of an action for retaliation. See Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (“The antiretaliation provision [of Title VII] protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”). Finizie argues that being placed on this status constituted a “materially adverse” employment condition because all other committee members had rights to attend all of the meetings, participate in all discussions, and receive copies of the meeting minutes, while she was told that she only had to attend the meetings that involved subject matter relating to her position. That is not sufficient to qualify. See id. at 68, 126 S.Ct. 2405 (distinguishing between “material adversity” and “trivial harms” and following a “reasonable employee” standard to make that distinction). We thus find that Finizie fails even to state a prima facie case on this claim.
* * * * * *
For these reasons, we affirm the judgments of the District Court.
. She has participated in EEO activity on behalf of herself by filing various complaints and also on behalf of other employees by being a witness in their discrimination complaints against the VA. She refers to her history of protracted litigation and EEO activity as “legendary,” "tenacious” and "unrelenting.”
. In her first set of actions, which were consolidated in 2002, Finizie lost on ail of her claims. See Finizie v. Principi, Civil Action No. 00-3268, aff’d, 69 Fed.Appx. 571 (3d Cir. 2003).
. When the District Court consolidated these actions, it ordered Finizie to file an amended consolidated complaint incorporating the claims brought in her initial complaints. In her amended complaint, however, Finizie failed to divide her claims into separate counts. Accordingly, the Court referred to Finizie's initial complaints in its orders so as to identify clearly the claims on which it was granting summary judgment in favor of the VA.
. Later that same day, Finizie filed a motion to reconsider after the Court denied her motion to compel. The Court denied this motion to reconsider, citing the same reasons it gave when denying the initial motion to compel.
. The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.
As noted above, Finizie seeks to challenge on appeal (1) the District Court's grants of summary judgment on three of Finizie's claims on February 1, (2) its denial of her motion to compel on April 1, and (3) its grants of summary judgment on Finizie's two remaining claims on April 16. Technically, however, the final order from which Finizie appeals is the Court's May 6, 2008 denial of her motion to reconsider its grants of summary judgment on April 16. Thus, while our jurisdiction over the Court’s April 16 order was preserved, see LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 225 n. 6 (3d Cir.2007) (a notice of appeal that identifies only the order denying a motion for reconsideration “does not in itself deprive us of jurisdiction over the appeal from the underlying order on the summary judgment motions”), we must assess our jurisdiction over the additional orders Finizie seeks to challenge.
We are satisfied as to our jurisdiction to review these orders. A notice of appeal must "designate the judgment, order or part thereof being appealed.” Fed. R.App. P. *6723(c)(1)(B). However, we "liberally construe the requirements of Rule 3(c),” Pacitti by Pacitti v. Macy’s, 193 F.3d 766, 776 (3d Cir. 1999), and an appellant's “fail[ure] to refer specifically to earlier orders disposing of other claims ... does not preclude us from reviewing those orders.” Shea v. Smith, 966 F.2d 127, 129 (3d Cir. 1992). Moreover, because the District Court did not mention Federal Rule of Civil Procedure 54(b) in its February 1, 2008 grant of partial summary judgment — or make an express determination that there was “no just reason for delay,” Fed.R.Civ.P. 54(b) — we "cannot reasonably conclude that the ... Court intended to enter a partial final judgment pursuant to that Rule.” Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 144 (3d Cir.2001). Accordingly, we may review directly the Court's February 1 grants of summary judgment, as well as its denial of Finizie's motion to compel. See Drinkwater v. Union Carbide Corp., 904 F.2d 853, 858 (3d Cir.1990) (“[S]ince ... only a final judgment or order is appealable, the appeal from a final judgment draws in question all prior non-final orders and rulings.”) (quoting Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977)).
.Exactly what Finizie appeals on this issue is not clear, as this section of her brief merely recites the case's procedural history before concluding that "[t]he [Cjourt abused its discretion by thwarting Finizie's ability to develop a nuanced and factually complex case.” Finizie's Br. at 33. Our best guess is that she is appealing the denial of her motion to compel, as she never renewed her Rule 56(f) motion after it was partially granted and partially denied, and there does not appear to be any other order of the District Court to which this particular line of argument might be linked.
. In particular, instead of taking lull advantage of the six-week discovery period the District Court granted, Finizie waited for more than three weeks to serve interrogatories and document requests on the VA. After receiving the VA’s replies, Finizie waited another two weeks — after discovery had closed and after the deadline to file motions for summary judgment had passed — to request additional information from the VA and to file a motion to compel after the VA refused that request. In addition, there is no evidence in the record indicating that Finizie took, or attempted to take, any of the seven depositions that she asserted she needed in order to withstand a motion for summary judgment. Lastly, it appears that Finizie had approximately three and a half months for discovery in 2003-2004 relating to her delay of placement claim in addition to what the Court granted in February 2008.
. Finizie also alleges, as a distinct ground for appeal, that “The Trial Judge Exhibited Bias and Prejudice Against [her].” Finizie's Br. at 33. We see nothing to suggest bias or prejudice on the District Judge's part. On the contrary, the record indicates that the District Judge made every attempt to allow Finizie to build her case and that he treated her claims with great care. We caution Finizie's attorney about throwing such serious allegations around lightly.
. Our review of a District Court's grant of summary judgment is plenary. See Scheidemantle v. Slippery Rock Univ. State Sys., 470 F.3d 535, 538 (3d Cir.2006).
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01-04-2023
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11-05-2022
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OPINION
PER CURIAM.
Plaintiff Elizabeth Liggon-Redding appeals the District Court’s orders dismissing her three complaints. We have consolidated her two appeals for disposition and will affirm the District Court’s order of July 17, 2007 in (06-cv-3129). We will vacate the Court’s orders of March 7, 2008 in (06-cv-3129) and (07-cv-1863) and remand for further proceedings consistent with this opinion.
I.
An understanding of the complicated nature of the plaintiffs appeals requires a review of the background circumstances. Tyrone Redding is a disabled veteran of the Vietnam War. He receives compensation from the Department of Veterans Affairs (“VA”) which is payable to his mother Marlene Redding, who the VA has entrusted as his fiduciary. As a disabled veteran, Mr. Redding is also entitled to a property tax exemption under New Jersey law. See N.J.S.A. 54:4-3.30(a).
In 1977, Mr. Redding married plaintiff. They lived in property located at 82 Hamilton Lane in Willingboro Township, New Jersey.
Title to the 82 Hamilton Lane property had been transferred from Edgar Robin*676son to “Elizabeth House [the plaintiffs former name] in trust for Stewart A. Lig-gon, JR.” on October 31,1977.
On January 19, 1998, plaintiff conveyed the title to “T. N. Redding [her husband], Etux.” Plaintiff stated in the District Court that she transferred the property to Mr. Redding “so we could get the [veteran’s] property tax exemption.”
Willingboro Township’s Tax Assessor, William R. Tantum, denied Mr. Redding the tax exemption for several years on the basis that he had not established that 82 Hamilton Lane was his domicile. Tantum justified his decision with evidence that Mr. Redding spent a considerable amount of time at his mother’s home in Pennsylvania.
The tax dispute was finally resolved when the Superior Court of New Jersey, Appellate Division, held that Mr. Redding was entitled to the exemption. See Twp. of Willingboro v. Redding, No. A-5356-05T1, 2007 WL 250379, at *2 (N.J.Super.Ct.App.Div. Jan.31, 2007).
During the pendency of the tax case, the Reddings stated that they were going to sell the 82 Hamilton Lane premises,1 and they indeed conveyed it on June 30, 2006.
On July 16, 2006, plaintiff filed suit in the District Court. Her complaint, docketed at (06-cv-3127), named Fidelity National Title, Congress Title Division, the closing agent for the sale of the property; its parent company, Fidelity National Title Insurance Company; and Key Properties GMAC Real Estate, a real estate agency involved in the transaction, as defendants. She asserted that the Hamilton Lane property was sold without her consent and that she was defrauded into signing documents. She also claimed the right to $10,000 in an escrow account established at the settlement of the property. In a later proceeding before the District Court, plaintiff admitted that her husband received the proceeds of the sale of 82 Hamilton Lane and that Mr. Redding gave that money to the plaintiffs son Stewart.2
The District Court dismissed the complaint in (06-cv-3127) for lack of subject *677matter jurisdiction. Liggon-Redding v. Cong. Title, No. 06-3127, 2007 WL 432985, at *1 (D.N.J. Feb.1, 2007). On appeal, we dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). Liggon-Redding v. Cong. Title, 229 Fed.Appx. 105 (3d Cir.2007).
The present appeals involve three suits that plaintiff subsequently filed in the District Court. In the amended complaint filed at (06-cv-3129), Willingboro Township and Tantum are named as defendants. Plaintiff alleges that she and her husband were deprived of quiet enjoyment of their home because the Township and Tantum’s alleged discriminatory acts in attempting to collect taxes caused Mr. Redding to sell their house against her wishes.
The plaintiffs complaint at (07-cv-1863) asserted a RICO3 claim pursuant to 18 U.S.C. §§ 1961-1968 against Anthony Bal-boni, Linda Huller, Tahir Zaman, Kristine LaPointe, Charles Wexton, Esq., and Oren Klein, Esq. According to the complaint, Balboni, Huller, and Zaman are employed by Key Properties; LaPointe and Wexton are employees of Congress Title; and Klein misrepresented himself as an attorney for Key Properties. Plaintiff alleges that these defendants committed numerous acts of fraud in connection with the sale of the family home, “enlisted Willing-boro Police Officers to Harass, Frighten, and Threaten [plaintiff] into not pursuing Justice,” and “have all gotten together to try to cover up their ongoing fraudulent and illegal activities.”4
Her final complaint, which was originally entered in the District Court’s docket at (07-cv-1890) and subsequently consolidated with her suit at (06-cv-3129), asserted a RICO claim against Willingboro Township; Tantum; Willingboro police officers Landry, Kueny, and White; as well as numerous John Doe defendants. According to the complaint, the Township, Tan-tum, the named police officers, and the Doe defendants committed a series of wrongful acts against plaintiff and her family.
The District Court dismissed the plaintiffs amended complaint that was filed at (06-cv-3129) for lack of standing. Her complaints that were originally entered in the docket at (07-cv-1863) and (07-cv-1890) were dismissed as a sanction pursuant to Fed.R.Civ.P. 41(b)5 because the plaintiffs failure to comply with numerous Rules of Civil Procedure and court orders in prosecuting her complaints warranted “the extreme sanction of dismissal.”
II.
In deciding to impose the sanction of dismissal of the plaintiffs complaints that *678were filed at (07-cv-1863) and (07-cv-1890), the District Court considered the Poulis factors. See Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.1984). But a Rule 41(b) “[dismissal is a harsh remedy and should be resorted to in only extreme cases.” Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992) (quoting Marshall v. Sielaff, 492 F.2d 917, 918 (3d Cir.1974)). All doubts should be resolved in favor of reaching a decision on the merits. See Briscoe v. Klaus, 538 F.3d 252, 257 (3d Cir.2008).
The plaintiffs abusive language and failures to heed helpful suggestions have sorely taxed the patience of the District Court, whose restraint has been commendable. Nevertheless we prefer to address the merits in this case rather than impose sanctions.
The plaintiffs complaints at (07-cv-1863) and (07-cv-1890) contain two types of claims. The first consists of RICO claims. A necessary element of a cognizable RICO claim where the collection of an unlawful debt is not alleged is the presence of “a pattern of racketeering activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 232, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989).
A pattern of racketeering activity occurs when a defendant commits a set of predicate racketeering acts, see 18 U.S.C. § 1961(1), that “are related, and ... amount to or pose a threat of continued criminal activity.” Tabas v. Tabas, 47 F.3d 1280, 1292 (3d Cir.1995) (quoting H.J. Inc., 492 U.S. at 239, 109 S.Ct. 2893) (emphasis omitted). Continuity can be proved by showing “either ... a closed period of repeated conduct, or ... past conduct that by its nature projects into the future with a threat of repetition.” H.J. Inc., 492 U.S. at 241, 109 S.Ct. 2893.
We find no basis in the extensive pleadings in this case for any RICO claims. Plaintiff has not alleged a set of predicate racketeering acts that satisfy RICO’s continuity requirement. See id. at 242, 109 S.Ct. 2893 (“[predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy [RICO’s continuity] requirement”). She therefore has not stated a RICO claim upon which relief can be granted. Upon remand, the District Court shall dismiss the plaintiffs RICO claims pursuant to Rule 12(b)(6).
The second type of claim that appears in the complaints filed at (07-cv-1863) and (07-cv-1890) is one of the use of excessive force by the police against the plaintiff personally. She asserts that she was physically assaulted during arrests that occurred on August 29 and September 21, 2006.
A pro se complaint “is to be liberally construed ... and ... must be held to less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Accordingly, we conclude that the plaintiffs pleadings are sufficient to state an excessive force claim under 42 U.S.C. § 1983. The District Court shall reinstate this claim on remand.6
III.
The District Court’s dismissed the plaintiffs discrimination claim in (06-cv-3129) for lack of standing. We will affirm.
*679In her amended complaint at (06-cv-3129), plaintiff alleged that Willingboro Township and Tantum “attempt[ed] to take away the Veterans Tax Exemption which her husband is entitled to because of his service in Viet Nam” on the basis of Mr. Redding’s race and disability. When pressed by the District Court as to why she was the party bringing this claim, plaintiff stated that she had authority to bring the claim on behalf of Mr. Redding pursuant to a power-of-attorney agreement. However she was unable to prove that Mr. Redding was competent when he executed the alleged power-of-attorney agreement, and the District Court dismissed the complaint for lack of standing.
The District Court properly dismissed this complaint. Pro se plaintiffs are generally prohibited “from pursuing claims on behalf of others in a representative capacity.” Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir.2008). As this Court has observed, “[i]t goes without saying that it is not in the interest of ... incompetents that they be represented by non-attorneys.” Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 883 (3d Cir.1991) (quoting Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.1990)).
IV.
In sum, we will affirm the District Court’s July 17, 2007 order dismissing the plaintiffs amended complaint at (06-cv-3129). We will vacate the Court’s March 7, 2008 orders in (07-cv-1863) and (06-cv-3129) dismissing the plaintiffs complaints that were filed at dockets (07-cv-1863) and (07-cv-1890) pursuant to Rule 41(b) and remand for further proceedings in conformity with this opinion.
. At a May 23, 2006 hearing in front of the Tax Court of the State of New Jersey, Appellate Division, the following exchange occurred,
“The Court: Mr. And Mrs. Redding, you have to understand [Willingboro Township is] gonna keep on trying [to challenge Mr. Redding’s eligibility for a disabled veteran’s property tax exemption] and they're entitled to do that every year.
Mr. Redding: I’m selling that place [82 Hamilton Lane].
Ms. [Liggon-]Redding: Your — Your Hon- or, we’re moving. We’re selling the house and we’re gone. We’re not—
Mr. Redding: I'm not go[ing] through this.
The Court: Well—
Ms. [Liggon-]Redding: — go[ing] through this no more.
The Court: — that may make Mr. Tantum very happy, I don't know, but—
Ms. [Liggon-]Redding: And us too.
The Court: — but they do have the right to do it every year.
Ms. [Liggon-]Redding: Thank you, Your Honor.
The Court: Okay.
Mr. Redding: I'll be gone sometime this year.
Ms. [Liggon-]Redding: You got rid of us. We're out.
Mr. Redding: Thank you.
Ms. [Liggon-]Redding: Thank you so much. Yes, Mr. Tantum, you can collect taxes from the next people. We’re out. You got what you wanted. You wanted us out.
The Court: It’s been a really fruitful morning."
. The following exchange occurred at a June 1, 2007 hearing before the District Court:
“[The Court:] Who got the money from the sale [of 82 Hamilton Lane]?
[Mrs. Liggon-Redding:] My husband.
[The Court:] What did he do with the money?
*677[Mrs. Liggon-Redding:] He gave it to my son.”
. Racketeer Influenced and Corrupt Organizations Act, Pub.L. 91-452, 84 Stat. 941.
. On June 11, 2008, Mrs. Liggon-Redding also filed suit in the Superior Court of New Jersey, Burlington County, Chancery Division, against all of the defendants named in (07-cv-1863) except Klein. She asserted a claim to quiet title to 82 Hamilton Lane and a claim pursuant to the New Jersey Consumer Fraud Act, N.J.S.A. § 56:8-1 et seq. The case was dismissed with prejudice on September 12, 2008. Redding v. Fid. Nat’l Title, No. C-77-08, slip op. at 1 (N.J.Super. Ct. Burlington County Ch. Div. Sept. 12, 2008). The Court held that Mrs. Liggon-Redding’s claims were "barred by the doctrines of res judicata and collateral estoppel, as this matter is tantamount to re-litigation of the same claims and issues that have been raised and brought to final judgment on the merits [in the District Court].” Id. at 2. We are not aware of any appeal of that case.
.Fed.R.Civ.P. 41(b) provides, "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision ... operates as an adjudication on the merits.”
. We note that the plaintiff has not demonstrated any particularly objectionable conduct with respect to her excessive force claim.
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11-05-2022
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OPINION OF THE COURT
RENDELL, Circuit Judge.
This case comes to us on appeal from the District Court’s grant of summary judgment in favor of the defendants and against prisoner plaintiff Jose Baez, in this civil rights action under 42 U.S.C. § 1983. The District Court concluded that Baez’s suit was foreclosed under the Prison Litigation Reform Act of 1996 (“PLRA”), 42 U.S.C. § 1997e(a), which requires a prisoner to exhaust his administrative remedies before proceeding in federal court. The District Court determined that “exhaustion” did not occur because Baez transmitted a letter complaint to Bayside’s Internal Affairs division, but did not file an Administrative Remedy Form (“ARF”) at Bay-side or at his subsequent places of incarceration, Northern State Prison (“NSP”) and New Jersey State Prison (“NJSP”). However, we conclude that summary judgment was improper because material fact issues exist as to whether Baez exhausted available administrative remedies. Accordingly, we will vacate the order of the District Court and remand the case.
Because we write solely for the benefit of the parties, we confine our discussion to the facts salient to this appeal. The events underlying Baez’s suit occurred during a lockdown of Bayside prison, ordered after the death of a guard in July 1997. Baez contends that Bayside personnel beat him during the lockdown and resorted to threats and intimidation to dissuade him from submitting an ARF, required to initiate the grievance process. Plaintiffs Appendix (“P.A.”) 347, 358-59. Shortly thereafter, in September 1997, Baez hand-delivered a letter to Bayside’s Internal Affairs department, in which he complained that he was assaulted during the lockdown; Bayside found his claim to be unsubstantiated. P.A. 300, 334.1 At the same time, in October 1997, Baez was *681transferred from Bayside to NSP and, in July 1998, Baez was again transferred to NJSP, where he remained until September 2001. P.A. 280. At no time prior to filing suit did Baez submit an ARF. P.A. 285.
We exercise plenary review of the District Court’s grant of summary judgment, applying the same test that the District Court applied. Waldorf v. Shuta, 896 F.2d 723, 728 (3d Cir.1990). Whether there is an available administrative remedy is a question of law for the court to decide, which we review de novo. Brown v. Croak, 312 F.3d 109, 111 (3d Cir.2002); Snider v. Melindez, 199 F.3d 108, 113-14 (2d Cir.1999). Where subsidiary fact issues exist, we will draw all reasonable inferences in the light most favorable to the non-moving party, affirming the grant of summary judgment only if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. See Croak, 312 F.3d at 112; Snider, 199 F.3d at 114; Waldorf, 896 F.2d at 728.
The PLRA, 42 U.S.C. § 1997e(a), provides, “[n]o action shall be brought with respect to prison conditions under [§ 1983] or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” The PLRA’s exhaustion requirement applies to inmate suits involving excessive force. Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Because it is an affirmative defense, the burden of proving failure to exhaust rests with the defendant. Ray v. C.O. Kertes, 285 F.3d 287, 295 (3d Cir.2002).
Here, it is undisputed that Bayside provided an administrative remedy that covered Baez’s specific complaint; that to avail himself of this remedy under the regulations in effect at the time of his assault, Baez was required to file an ARF; and that Baez failed to do so when he transmitted, instead, a letter complaint to Bayside’s Internal Affairs department in September 1997. Finding these facts dispositive, the District Court granted summary judgment in favor of the defendants. Baez contends, however, that the District Court failed to address the fact that a parallel procedure was adopted by Bayside in January 1999 (“1999 procedure”) to track complaints regarding the 1997 lockdown. P.A. 555-59. In his deposition, James Dutch, a Bayside official, testified that in January 1999 Bayside began “converting” “all” inmate complaints regarding the 1997 lockdown — whatever their form and whenever sent — into ARFs.2 P.A. 555-59. Dutch explained, further, that these ARFs were then forwarded to the Special Investigations division for further consideration and possible response. Baez maintains that ARFs prepared by Bayside staff, on the one hand, and ARFs prepared by an inmate personally, on the other, were subject to the same administrative review, and enabled an inmate to access *682exactly the same remedies. Accordingly, Baez maintains that, practically speaking, he “exhausted” his administrative remedies when his letter complaint was converted to an ARF and forwarded to the Special Investigations division. We agree that Dutch’s testimony, which was not addressed by the District Court, raises multiple fact issues material to our exhaustion inquiry, including: (1) whether Bayside began accepting letter complaints in lieu of ARFs; (2) whether Baez’s letter to Internal Affairs was, in fact, converted to an ARF, forwarded to the Special Investigations division, and adjudicated by Bayside in a timely manner;3 (3) if so, whether Baez filed suit prematurely, or whether he properly awaited adjudication of his ARF before commencing his federal action;4 and (4) whether Bayside afforded identical administrative review and remedies for “converted” ARFs, such as Baez’s, and ARFs prepared personally by inmates. Because these fact issues bear directly on whether Baez properly exhausted his administrative remedies, and were not specifically addressed by the District Court, we will vacate the grant of summary judgment and will remand the case.
Our conclusion that the 1999 procedure raises material fact issues is buttressed by Judge Kugler’s decision in In re Bayside Litigation (Abbott), No. 08-127, a related action brought by another Bayside inmate, Joseph Abbott. Abbott, like Baez, transmitted a letter to Bayside complaining of misconduct during the 1997 lockdown instead of filing an ARF. Defendants moved for summary judgment under the PLRA. Relying on evidence identical to that presented here — Dutch’s deposition testimony — the District Court denied summary judgment.5 P.A. 668. We are cognizant that Abbott, unlike Baez, transmitted his letter complaint in September 1999— after Bayside began converting letter complaints to ARFs. However, given evidence that Bayside converted all inmate correspondence concerning the 1997 lockdown into ARFs, we cannot conclude, on the scant record before us, that this distinction necessarily means that Baez failed to exhaust his remedies.6
Two other fact questions raised by the evidence also require our remand of the case: whether Bayside personnel interfered with Baez’s access to the grievance system; and whether Baez should have filed a grievance at NJSP or NSP if the remedies were not indicated as being available for misconduct by personnel at other prisons.7
*683First, Baez introduced evidence sufficient for a reasonable jury to conclude that Bayside interfered with his access to the grievance system, by withholding remedy forms during the lockdown and by employing threats that would have deterred an “individual of ordinary firmness” from filing a complaint, thus rendering the ARF procedure unavailable at the time of the lockdown and before he was transferred. P.A. 300, 347, 526, 555, 558; see Hemphill v. New York, 380 F.3d 680, 688 (2d Cir.2004); see also Kaba v. Stepp, 458 F.3d 678, 684-85 (7th Cir.2006); Miller v. Norris, 247 F.3d 736, 740 (8th Cir.2001).8
Second, Baez introduced evidence from which a jury could rationally conclude that NJSP and NSP did not indicate the availability of procedures for filing complaints involving conditions at other institutions. Judge Kugler concluded that both NJSP and NSP afforded an administrative remedy applicable to Baez’s specific complaint; that this remedy, which entailed “referral” of the complaint to the appropriate institution, was not exhausted by Baez; and that Baez’s failure to avail himself of NJSP and NSP’s “referral” remedy was not excused by his fear of retaliation, as he encountered no threats at either institution. Defendants’ Appendix (“D.A.”) 61; P.A. 406. However, the District Court did not address evidence that this remedy was not reasonably communicated to Baez and, therefore, was practically “unavailable.” See Goebert v. Lee County, 510 F.3d 1312, 1323 (11th Cir.2007); see also Bryant v. Rich, 530 F.3d 1368, 1373 & n. 6 (11th Cir.2008); Ruggiero v. County of Orange, 467 F.3d 170, 178 (2d Cir.2006); cf. Croak, 312 F.3d at 113. No document apprised inmates that relief was available for conditions at other prisons. To the contrary, the NSP and NJSP inmate handbooks conveyed the opposite impression. The NSP handbook, for example, instructed inmates to use ARFs solely for “complaints regarding conditions within the jurisdiction of the institution that affect them personally.” P.A. 428-30 (emphasis added). The remedy section of the NJSP handbook, moreover, did not specify a procedure for filing complaints involving conditions at other institutions. P.A. 383.9 Indeed, an NJSP official testified that ARF forms were used primarily for complaints regarding conditions at NJSP, and that he could not recall a single occasion in which NJSP had handled a complaint involving conditions at another institution. D.A. 60; P.A. 383, 417. Hence, whether NJSP and NSP adequately communicated to Baez that remedies were available for misconduct by officials at Bayside presents a fact issue for the jury.
For the foregoing reasons, we conclude that summary judgment was improper, *684and that additional factual findings are required before it can be determined, as a matter of law, whether Baez failed to exhaust his administrative remedies. Accordingly, the order of the District Court will be VACATED, and the case REMANDED to the District Court for further proceedings consistent with this opinion.
. The record reflects that the letter was drafted by Baez on August 29, 1997, but marked "received” by Bayside on September 2, 1997. *681P.A. 334. Henceforth, we will refer to the date of receipt, not authorship.
. Defendants urge the Court to disregard Dutch's testimony, which they claim was not properly before Judge Kugler. Although Dutch's testimony was appended to a submission filed in a separate lawsuit, Baez expressly incorporated by reference Dutch's testimony in his own response brief. P.A. 670-71. Defendants contend that the District Court's denial of class certification precludes Baez from incorporating evidence from other Bay-side cases by reference. We find no logical relationship between the District Court’s denial of class certification, which dictates how plaintiffs' substantive claims are adjudicated, and Baez's right to incorporate evidence by reference — a means of eliminating duplicative attachments that has no impact on how issues are tried. Accordingly, Dutch's testimony was properly before Judge Kugler and, in turn, this Court.
. A prison must timely respond to inmate grievances, and thus Bayside could not postpone consideration of Baez's ARF indefinitely. See Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.2002); see also Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007); Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir.2001); Shah v. Quinlin, 901 F.2d 1241, 1243-44 (5th Cir.1990).
. In Woodford v. Ngo, the Supreme Court instructed that “proper” exhaustion requires that an inmate afford prison officials adequate “time and opportunity to address complaints internally” before filing suit. 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006).
. After noting that "as early as January 1999, administrators at Bayside State Prison were accepting prisoner complaints through means other than the administrative remedy form prescribed in the 1996 Bayside Prison Inmate Handbook, such as by letter or other informal means,” Judge Kugler concluded that hearings were required “to assess the impact of the newly presented evidence [from James Dutch] concerning the administrative remedy process in use at Bayside State prison during the relevant time period.” P.A. 668.
. We underscore that Baez violated no prison regulation by his delay, since, as Judge Kugler observed, Bayside did not require inmates to file ARFs within a specific timeframe.
. These fact issues are relevant only if the District Court concludes, on remand, that Baez did not exhaust his remedies at Bayside through the 1999 procedure. If Baez did so *683exhaust his remedies, then his suit may be maintained under the PLRA, and whether he could have availed himself of remedies allegedly available at NSP and NJSP is no longer relevant.
. Although Baez testified that he feared retaliation, he failed precisely to identify which defendants issued threats or engaged in other intimidation. Accordingly, we reject Baez's argument that defendants are equitably es-topped from urging exhaustion as an affirmative defense. See Hemphill, 380 F.3d at 689 (estoppel only applies to individual defendants who engaged in wrongdoing).
. The section of the NJSP handbook describing the Office of Ombudsman suggests that complaints involving conditions at other institutions should be raised not through the ARF process, as defendants assert, but rather through the Office of Ombudsman. P.A. 387 ("This Office [Office of the Ombudsman] was set up to help you in resolving problems and complaints which cannot be dealt with within the Institution.”) (emphasis added). The NSP handbook contains similar instructions. P.A. 408. Because defendants do not contend that Baez was required to file a grievance with the Office of the Ombudsman to exhaust his remedies, we do not analyze this issue.
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OPINION
PER CURIAM.
K. James Carpenter, proceeding pro se, filed an action in the District Court alleging misconduct and violations of the Civil Rights Act of 1866, the Fourteenth Amendment to the United States Constitution, and 42 U.S.C. §§ 1985-1988 by fifteen defendants, stemming from his purchase of rental property in Media, Pennsylvania, in 1994. The District Court dismissed his complaint. Carpenter appeals that decision. We will affirm.
I
Though Carpenter and the Appellees dispute numerous facts, the following facts are uncontroverted. Carpenter, a realtor, purchased commercial property from Eva Winters Johnson in 1994, subject to a mortgage. In 1997, Johnson brought suit to set aside the original transaction. The parties settled and reset the mortgage.
In a subsequent action filed by Ronald Ashby—an attorney assigned as trustee over the properties — related to the collection of rent from the Media properties, Magisterial District Judge Stephanie Klein rendered two judgments against Carpenter.
In 2001, Eva Winters Johnson’s estate filed suit in the Delaware County Court of Common Pleas to recover the property, alleging that Carpenter had defaulted on the mortgage. Judge James Proud ordered Carpenter to deed the property to Johnson’s estate. Judge Kathrynann Durham was subsequently assigned to the 2001 foreclosure action, and apparently either issued an order or rendered a judgment against Carpenter.
Also in 2001, Carpenter filed a complaint in the District Court that included a number of the same defendants to the present action, including the Borough of Media.1 *686See E.D. Pa. Civ. No. 01-CV-1828 (Surrick, J.). Carpenter’s 2001 complaint alleged that the Borough of Media instituted racially discriminatory zoning practices. In March 2002, the District Court dismissed all of Carpenter’s claims with prejudice. He appealed, and we dismissed the appeal as untimely. Carpenter v. Johnson, C.A. No. 05-3006 (order entered on November 3, 2005).
In April 2006, Carpenter filed the instant complaint for damages and injunctive relief against, inter alia, the Borough of Media and Magisterial District Judge Klein and Judge Proud, of the Delaware County Court of Common Pleas. Carpenter later amended his complaint to include, inter alia, Judge Durham of the Delaware County Court of Common Pleas. Each defendant filed a motion to dismiss. The District Court dismissed each claim pursuant to Federal Rule of Civil Procedure 12(b)(6). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
II
On appeal, Carpenter raises six arguments.2 Carpenter’s first four claims allege state court error during the foreclosure proceedings.3 Carpenter also claims that the District Court erred in dismissing his race discrimination claims against the Borough of Media and his judicial misconduct claims against the three judges of the Delaware County Court of Common Pleas.
State Court Claims
Inasmuch as Carpenter’s vague complaint can be read to include the state court error claims, this Court lacks jurisdiction to entertain them under the Rooker-Feldman doctrine. The Rooker-Feldman doctrine deprives federal courts of jurisdiction to entertain a claim “if the relief requested effectively would reverse a state court decision or void its ruling.” Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 192 (3d Cir.2006) (internal citations omitted). The doctrine applies only to the narrow class of “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the [federal] court proceedings commenced and inviting [federal] court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Here, Carpenter alleges that Judges Proud, Durham, and Klein erred in their rulings against him. Specifically, he claims that the state courts violated Pennsylvania law, as each judge’s decision constituted an “abuse of discretion,” an “error of law,” or a violation of the doctrines of res judicata and collateral estoppel. Because his claims amount to an invitation to review the state court decisions on grounds independent of constitutional or other federal law, we conclude that Carpenter’s claims are barred by Rooker-Feldman.4 Alternatively, to the *687extent that Carpenter presents claims on appeal that are not barred by Rooker-Feldman, but which were not raised in the District Court, such claims are barred from consideration. See Brown v. Philip Morris, Inc., 250 F.3d 789, 799 (3d Cir. 2001).
Race Discrimination Claims
Carpenter alleges that “[t]he Borough of Media committed racist discrimination against Appellant under the Civil Rights Act of 1866.” We construe this argument as a challenge to the District Court’s dismissal with prejudice of Carpenter’s claim that the Borough of Media conspired to discriminate against him because of his race.5 We exercise plenary review of a Rule 12(b)(6) dismissal. See Weston v. Pennsylvania, 251 F.3d 420, 425 (3d Cir.2001). We accept as true all factual allegations in the complaint and will affirm a dismissal under Rule 12 only if it is certain that the complaint fails to include sufficient factual matter to state a facially plausible claim to relief. See Ashcroft v. Iqbal, 556 U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Carpenter’s complaint identified 42 U.S.C. §§ 1985-1988 and 18 U.S.C. § 241 and § 242 as the grounds for his discrimination claim. Section 1985 requires a plaintiff to allege that invidious racial, or otherwise class-based, discriminatory animus lay behind the defendants’ actions, and he must set forth facts from which a conspiratorial agreement between the defendants can be inferred. See Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 267-68, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993). “[Mjere conclusory allegations of deprivations of constitutional rights are insufficient to state a § 1985(3) claim.” D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1377 (3d Cir.1992) (internal citations omitted); see also Iqbal, 129 S.Ct. at 1949-51 (applying the same rule to Bivens actions). The District Court reasoned that Carpenter failed to allege any facts from which to infer discriminatory animus, and that there are insufficient facts in his complaint to support an inference that a conspiratorial agreement between any parties existed. We agree.6
“In order to maintain a cause of action under § 1986, [a plaintiff] must show the existence of a § 1985 conspiracy.” Clark v. Clabaugh, 20 F.3d 1290, 1295 n. 5 (3d Cir.1994). As the District Court held, because Carpenter failed to sufficiently allege a § 1985 violation, he could not assert a cause of action under § 1986.
Likewise, Carpenter’s claims under § 1987 and § 1988 were properly dismissed. Section 1987 authorizes and requires certain federal officers to initiate prosecutions for particular violations. On its face, § 1987 does not authorize a private right of action. And Carpenter points to no authority suggesting that § 1987 implicitly authorizes a private right of action. Nor does § 1988 provide for a private cause of action. See Moor v. County of Alameda, 411 U.S. 693, 702, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973).
*688Finally, we agree with the District Court’s dismissal of the 18 U.S.C. § 241 and § 242 claims. Neither statute creates a civil cause of action. See, e.g., United States v. Philadelphia, 644 F.2d 187, 199 (3d Cir.1980).
Judicial Misconduct Claims
Carpenter contends that the District Court erroneously dismissed his complaint as to the three judicial defendants under the doctrine of judicial immunity because the defendants failed to affirmatively plead judicial immunity. This allegation is factually incorrect, as all three judicial defendants raised the judicial immunity doctrine in their Rule 12(b)(6) motions. See Doc. No. 48 (Judges Proud and Klein); Doc. No. 109 (Judge Durham). Moreover, the District Court correctly reasoned that these defendants are entitled to absolute judicial immunity.
Reply Brief Claims
In his reply brief, Carpenter for the first time raises claims as to the propriety of Judge Surrick’s conduct with regard to his 2001 case. We will not address claims in this appeal that Carpenter could have raised had he filed a timely appeal from the decision in his 2001 case.
Likewise, although Carpenter raised no claims related to Appellee Anderson in his initial brief, his reply brief alleges misconduct on Anderson’s part. We will not consider claims in the reply brief that Carpenter neglected to include in his initial appellate brief. See AFL-CIO v. Foster, 26 F.3d 375, 398 (3d Cir.1994).
Accordingly, we will affirm the decision of the District Court. All motions to supplement the record are denied. Raffo’s motion to dismiss Mr. Raffo as a party pursuant to Federal Rule of Appellate Procedure 43 (suggestion of death) is granted; the Clerk is directed to amend the caption. Wismer’s motion to quash the subpoena is granted in part, but denied as to the imposition of sanctions. Ashby’s motion for sanctions is denied.
. In the 2001 complaint, Carpenter named "Media Borough Zoning Ordinances” as a defendant. In the instant complaint, he refers to "Borough of Media” and "Media Borough Zoning Ordinances” interchangeably. *686Following the lead of Judge Surrick and Judge Dubois, we refer to the party solely as "Borough of Media.”
.In his notice of appeal, Carpenter states that he appeals all orders entered by the District Court in his case. Because Carpenter is an experienced litigant, we limit our consideration to the arguments raised in his appellate brief. Nevertheless, we remain mindful of our obligation to construe a pro se litigant’s pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
. These four claims are actually set out in seven statements — four in his "Statement of the Questions Involved,” and three in his "Summary of the Argument.” The latter three statements merely paraphrase the allegations in the "Statement of Questions Involved."
. Inasmuch as these claims were adequately raised before the District Court, the District Court also lacked jurisdiction to entertain them. See FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996).
. Carpenter’s complaint identified a different statutory basis, discussed below, for his race discrimination claim.
. Inasmuch as Carpenter's complaint can be construed to include a claim under the Civil Rights Act of 1866, i.e., 42 U.S.C. § 1981, the claim lacks merit for the same reason. To set forth a claim under § 1981, a plaintiff must allege, inter alia, "an intent to discriminate on the basis of race by the defendant.” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.1993). Here, Carpenter has not alleged any facts from which a discriminatory animus on the part of the Borough of Media might be inferred.
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OPINION
PER CURIAM.
Zhi Zhao petitions for review of a order of the Board of Immigration Appeals (BIA). For the reasons below, we will grant the petition for review and remand the matter to the BIA.
In August 2002, Zhao was charged with removability as an arriving alien without entry documents. She conceded remova-bility and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The Immigration Judge (IJ) made an adverse credibility finding and denied relief. He also found that Zhao had filed a frivolous application.1 In March 2006, the BIA affirmed the IJ’s decision without an opinion. Zhao did not petition for review of the BIA’s order.
In October 2008, Zhao filed a motion to reopen alleging changed country conditions in China. She argued that she would be sterilized if removed to China because she had given birth to a child in the United States and was pregnant with a second child. The BIA determined that Zhao had not shown changed country conditions and denied the motion to reopen as untimely. Zhao filed a timely petition for review.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006). Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). An alien generally may file only one motion to reopen, and must file the motion with the BIA “no later than 90 days after the date on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2). There is an exception to the time and number requirements for motions that rely on evidence of changed circumstances arising in the country of nationality. 8 C.F.R. § 1003.2(c)(3).
Zhao argues that the BIA failed to consider all of the evidence she submitted. We agree. In Zheng v. Att’y Gen., 549 F.3d 260 (3d Cir.2008), the petitioners sought to reopen their removal proceedings on the same grounds as Zhao. We vacated the BIA’s denials of the motions to *690reopen because the BIA failed to discuss the evidence submitted by the petitioners or explain why it was not sufficient. Id. at 268-69, 271. Here, the BIA listed the evidence submitted by Zhao and noted that the identity documents did not contain authenticating information. After stating that the birth of Zhao’s first child and her pregnancy were changes in her personal circumstances, the BIA simply concluded: “[t]he evidence, including the evidence of conditions in China, is insufficient to establish a change in circumstances or country conditions ‘arising in the country of nationality’ so as to create an exception to the time and number limitation for filing a late motion to reopen to apply for asylum.” C.A.R. at 3. While the BIA noted that under Zheng it must adequately consider the evidence submitted, it failed to do so.
The BIA also cited to In re S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), and Matter of C-C-, 23 I. & N. Dec. 899 (BIA 2006). In S-Y-G-, the alien submitted a 2003 Chan-gle City Administrative Opinion and a 2003 Fujian Province Administrative Opinion responding to an inquiry as to the application of the family planning guidelines to an unrelated alien, Zheng Yu He. The record also included the Changle City Q & A Handbook. The BIA determined that the petitioner had not shown changed country conditions and denied the motion to reopen. In Matter of C-C-, the BIA found that the 2004 and 2005 State Department Country reports were more persuasive than an affidavit from a retired demographer, Dr. John Aird, in determining that an alien with U.S.-born children had not shown a prima facie showing that she might suffer sterilization if returned to China.
We observed in Zheng that “where the evidentiary record contains documents that were not at issue in an earlier decision, mere reference to that earlier decision is insufficient to warrant adopting its conclusions.” Zheng, 549 F.3d at 271 n. 7. Here, Zhao submitted documents that were not at issue in S-Y-G- or Matter of C-C-. She submitted, inter alia, Shan-gyang Village family planning regulations, letters from family members and friends who were forcibly aborted or sterilized in China, the 2007 Country Report on Human Rights Practices, congressional testimony, and notices from town and village birth control offices directed to her. The BIA did not explain how this evidence was insufficient to support reopening.
In its brief, the government relies heavily on the BIA’s decision in Matter of J-WS-, 24 I. & N. Dec. 185 (BIA 2007), for the proposition that children born overseas are not counted by the Chinese government for family planning purposes. However, in Zhao’s case, the BIA did not cite to J-WS- even though it was available at the time of the BIA’s decision.
The government also relies on the prior adverse credibility finding. While the BIA noted that the prior adverse credibility determination should be considered, it did not explicitly reject any specific evidence based on the adverse credibility finding. The government also argues that the notices Zhao allegedly received which demand that she report for IUD insertion and sterilization were unauthenticated. However, while the BIA pointed out that the identity documents and birth certificates were unauthenticated, it made no similar observation with respect to the notices Zhao received; it stated only that she submitted the notices.
Because the BIA failed to adequately explain its reasoning for rejecting Zhao’s evidence and denying her motion to reopen, we will grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for it to reconsider the motion and provide a more complete analy*691sis of the evidence submitted. See Zheng, 549 F.3d at 272.
The government’s motion to dismiss is denied.
. The government contends that even if the BIA abused its discretion in denying the motion to reopen, remand would be futile because the IJ found that Zhao had filed a frivolous application and this finding rendered her permanently ineligible for benefits. 8 U.S.C. § 1158(d)(6). However, the BIA did not rely on the frivolousness finding in denying Zhao's motion to reopen. Dia v. Ashcroft, 353 F.3d 228, 256 n. 25 (3d Cir.2003) (noting that under the doctrine of SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 87 L.Ed. 626 (1943), an administrative order can be upheld only on the grounds relied on by the agency).
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OPINION
PER CURIAM.
Wilson Aguilar petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the *692reasons that follow, we will deny the petition.
I.
Aguilar, a native and citizen of Honduras, entered the United States without inspection in May 1998. In May 2003, he married Reyna de Los Angeles Molina, a Salvadorian national with Temporary Protected Status (“TPS”) under 8 U.S.C. § 1254a. In August 2006, the Department of Homeland Security issued Aguilar a Notice to Appear, charging him with being subject to removal pursuant to 8 U.S.C. § 1182(a) (6) (A) (i). A few weeks later, Aguilar applied for TPS based on his status as Molina’s spouse. In January 2007, U.S. Citizenship and Immigration Services (“USCIS”) denied Aguilar’s TPS application. USCIS concluded that Aguilar submitted his application after the initial registration period (i.e., after September 9, 2002), and that he failed to qualify for late initial filing under 8 C.F.R. § 244.2 because he was not married to a TPS registrant at the time of the initial registration period.
Aguilar subsequently renewed his request for TPS in his removal proceeding before the Immigration Judge (“IJ”). He argued that 8 C.F.R. § 1244.2 — the Executive Office for Immigration Review’s applicable regulation, which is identical to § 244.2 — required that he be married to a TPS registrant at the present time, not at the time of the initial registration period. The IJ rejected this argument, concluding that the regulation required an applicant to be married to a TPS registrant at the time of the initial registration period. Accordingly, the IJ denied Aguilar’s TPS application and ordered his removal from the United States. The BIA affirmed on appeal, agreeing with the IJ’s reading of the regulation. Aguilar now petitions this Court to review the BIA’s decision.
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). Although we exercise de novo review over constitutional claims and questions of law, Yusupov v. Att’y Gen. of the U.S., 518 F.3d 185, 197 (3d Cir.2008), we must afford appropriate deference to an agency’s interpretation of its own regulations. See Abdulai v. Ashcroft, 239 F.3d 542, 552 (3d Cir.2001). Indeed, we have held that “[a]n agency’s interpretation of its own regulation is ‘controlling ... unless it is plainly erroneous or inconsistent with the regulation.’ ” Id. (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945)).
Aguilar challenges the BIA’s affirmance of the IJ’s interpretation of § 1244.2. This section provides that an alien may be granted TPS if he, inter alia,
(f)(1) Registers for Temporary Protected Status during the initial registration period announced by public notice in the Federal Register, or
(2) During any subsequent extension of such designation if at the time of the initial registration period:
(i) The applicant is a nonimmigrant or has been granted voluntary departure status or any relief from removal;
(ii) The applicant has an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which is pending or subject to further review or appeal;
(iii) The applicant is a parolee or has a pending request for reparole; or
(iv) The applicant is a spouse or child of an alien currently eligible to be a TPS registrant.
8 C.F.R. § 1244.2(f)(1), (2) (emphasis added). Aguilar argues that the language “at the time of the initial registration period” applies to subparagraphs (i), (ii), and (iii), *693but not (iv) because only this last subpara-graph is worded in the present tense. This interpretation is completely at odds with the plain language of the regulation, as each subparagraph is worded, at least in part, in the present tense, and there is nothing in the regulation suggesting that “at the time of the initial registration period” does not apply to each subparagraph. Although Aguilar alternatively argues that the regulation is ambiguous and therefore should be construed in his favor, we believe there is no such ambiguity. We conclude that the BIA did not err in affirming the IJ’s interpretation of this regulation.
Aguilar’s constitutional claims also lack merit. He first argues that § 1244.2 violates due process because it is void for vagueness. Even assuming that he can raise such a challenge, see Huarcaya v. Mukasey, 550 F.3d 224, 230 (2d Cir.2008) (per curiam) (noting that petitioner’s “ability to maintain a void-for-vagueness challenge to a civil regulation that provides immigration benefits is not clear”), his claim fails because § 1244.2’s meaning is clear. He also contends that the regulation violates the Equal Protection and Due Process Clauses of the Fifth Amendment because it differentiates between aliens who were married at the time of the initial registration period and aliens who were married at the time of the late registration period. “[Disparate treatment of different groups of aliens triggers only rational basis review under equal protection doctrine.” DeSousa v. Reno, 190 F.3d 175, 184 (3d Cir.1999). We have stated that, “[u]nder this minimal standard of review, a classification is accorded ‘a strong presumption of validity’ and the government has no obligation to produce evidence to sustain its rationality.” Id. (quoting Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)). Moreover, “[o]nce a facially legitimate reason for the classification is found ... we must rule the classification constitutional.” Id.
In support of § 1244.2’s constitutionality, the Government asserts that the regulation
help[s] to promote family unity among those family members who were otherwise eligible for TPS, but were not included on the initial registration application. It was not wholly irrational to exclude aliens who married TPS registrants after the initial registration period because those aliens were not left off the initial application. By limiting the late registration exception to aliens who were spouses at the time of the initial registration period, the INS promoted family unity without encouraging abuses of the system, such as entering into marriage solely to benefit from the late TPS registration.
(Brief for Respondent at 22.) We conclude that this reasoning is facially legitimate, and therefore uphold the regulation’s distinction between aliens married during the initial registration period and aliens married during the late registration period.
In light of the above, Aguilar’s petition for review will be denied. Aguilar’s “Motion for Emergency Stay of Removal/Deportation/Exclusion” and motion for oral argument are also denied.
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OPINION
AMBRO, Circuit Judge.
The Estate of Elmer R. Possinger, Rachael M. Possinger-Seidel, and Kelly S. Possinger (“Plaintiffs”) filed suit against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., alleging that the death of Elmer R. Possinger resulted from negligence of the National Park Service. After a bench trial, the District Court entered final judgment in favor of the United States. Plaintiffs appeal, arguing that the District Court’s findings of fact were clearly erroneous and that the District Judge was biased. For the reasons set forth below, we affirm.
I.
In May 2005, E.F. Possinger and Sons contracted with the National Park Service to remove a tree that had fallen on the roof of a springhouse at Delaware Water Gap Recreation Area (“the Park”). Pos-singer, the owner and president of Pos-singer and Sons, was tragically killed when the tree crashed into his crane during the removal.
Plaintiffs filed suit alleging negligence, and a three-day bench trial followed. The testimony established that on May 24, 2005, Possinger and his helper, Charles Praetorious, completed a job in another section of the Park and proceeded to the springhouse to remove the fallen tree. While Praetorious drove the crane to the site, Possinger stopped at the office of Park Service employee Robert Geis to ask to borrow a chainsaw for use in the tree removal. Because Park Service policy did not permit Geis to lend equipment, Geis asked two Park Service employees, J.T. Slater and John Stead, to assist Possinger using the Park’s chainsaw.
At the site, after directing Praetorious to hook the crane’s cable to the tree, Pos-singer attempted to remove the tree using the crane. When this was unsuccessful, Possinger, sitting in the cab of the crane, directed Stead to cut the tree with the chainsaw while the crane’s cable was still attached to the tree. Both Stead and Slater testified that Possinger asked Stead to cut the tree because it still was attached to the ground at its roots.
When Stead asked Possinger if there was tension on the crane’s cable, Possinger responded that there was none. This confirmed Stead’s visual observation that the cable was slack. According to Praetorious and Slater, Possinger was looking directly at the tree while it was being cut. He remained in the crane of the cab and provided no further instructions to the Park Service employees. When the tree was cut free from its roots, it went to the ground, rose up, and crashed through the cab of the crane. Possinger suffered fatal injuries.
Plaintiffs’ expert testified at trial that cutting the tree in an unrestrained manner on a slope caused the cable to act as a pivot point, swinging the tree into the crane’s cab. Under this theory, Possinger played no role in the accident. In contrast, the Government’s expert testified that the accident resulted from Possinger’s actions in operating the crane — either through his failure to have the hook *696aligned directly over the load, or through his movement of the crane arm immediately after the tree was cut.
In its post-trial Memorandum and Order, the District Court found for the Government. Plaintiffs now appeal.
II.
The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1346(b), and we have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291.
We may set aside the District Court’s factual findings only if clearly erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Henglein v. Colt Indus. Operating Corp., 260 F.3d 201, 208 (3d Cir. 2001).
II.
Under the FTCA, liability is determined according to the substantive law of the state in which the injury occurred — here, Pennsylvania. See 28 U.S.C. § 1346(b)(1); Matsko v. United States, 372 F.3d 556, 559 (3d Cir.2004). To recover on a negligence theory under Pennsylvania law, plaintiffs must show that (1) a duty existed, (2) the United States breached that duty, (3) the breach was the cause in fact of the injury, (4) the breach was the proximate cause of the harm, and (5) damages resulted. See Redland Soccer Club, Inc. v. Dep’t of the Army, 55 F.3d 827, 851 & n. 15 (3d Cir. 1995). “An owner of property does not have a duty to protect the employees of an independent contractor from risks arising from or created by the job contracted.” LaChance v. Michael Baker Corp., 869 A.2d 1054, 1057 (Pa.Commw.Ct.2005).
Pennsylvania has adopted a comparative negligence statute. 42 Pa. Cons.Stat. Ann. § 7102. Therefore, if the negligence of Possinger was greater than the negligence, if any, of the Park Service, Plaintiffs cannot recover. See Elder v. Orluck, 511 Pa. 402, 515 A.2d 517, 525 (1986).
The District Court determined that insufficient slack in the crane’s cable caused the accident. The District Court concluded there were two possible reasons for the tension: improper angling of the cable over the load or movement of the crane arm immediately after the tree was cut. Possinger was the only person in the position to control either of these errors.
Having reviewed the record, we discern no clear error in the District Court’s factual findings and conclusions. It is true that the Park Service employees decided exactly how to cut the tree. However, Plaintiffs presented no credible evidence that had the tree been cut in a different way, the accident would have been avoided. Snead agreed to cut the tree only because Possinger directed him to do so and he had assured Snead that there was no tension in the cable.
Plaintiffs attempt to differentiate between a “tree lifting” operation, for which Possinger was in control as the crane operator, and a “tree cutting” operation, for which the Park Service employees were solely responsible. Plaintiffs support this assertion by stressing that the contract was titled “Contract Rental.” However, the contract expressly defined the service to be provided as “Remove tree at Spring-house.” The District Court rejected Plaintiffs’ theory, finding that Possinger remained in control of the operation while the tree was being cut. The District Court relied in large part on testimony by the Government’s expert witness. While plaintiffs’ expert testified at trial that Pos-singer’s operation was in progress only when Possinger was actually lifting the tree, not during the tree cutting, the Court did not find this testimony persuasive. The Government’s expert, relying in part on federal and industry regulations, testi*697fied that the operation led by Possinger began when Praetorious wrapped the cable around the tree and did not end at any time before the accident. The District Court chose to credit the testimony of the Government’s expert because of his superi- or qualifications, logical opinions, and credible and persuasive testimony.
Other testimony supported the conclusions of the Government’s expert. Pos-singer’s request to borrow a chainsaw from the Park Service shows that he understood it was his responsibility under the contract to cut the tree. Geis testified that he instructed Stead and Slater simply to assist Possinger. It is undisputed that Possinger was in control of the crane and the crane’s cable, and he alone made the decision to cut the tree while the crane’s cable was tied to the tree.
The only possible negligence of the Park Service employees, the District Court concluded, was their adherence to Possinger’s order to cut the tree, and any such negligence paled in comparison to the negligence of Possinger. These findings were supported by the record and were not clearly erroneous.
IV.
Plaintiffs assert that the District Judge demonstrated a bias against Plaintiffs throughout the trial, which cumulatively tainted the trial and deprived Plaintiffs of a fair trial. In support of this allegation, they point to unremarkable trial rulings made in the Government’s favor and to instructions from the Judge to Plaintiffs’ counsel as to how to behave in court.
We have reviewed the trial transcript in full and find this assertion of judicial bias unsupported by the record and completely without merit.
* * * * * *
In conclusion, we perceive no clear error in the District Court’s factual findings, and believe there is no merit in Plaintiffs’ assertion of bias. Therefore, we affirm the judgment of the District Court in all respects.
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OPINION
McKEE, Circuit Judge.
Pedro Gutierrez appeals the order of the district court denying his motion to dismiss the indictment pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure based on alleged violations of his speedy trial rights under the Sixth Amendment to the United States Constitution and the Speedy Trial Act, 18 U.S.C. § 3161. For the reasons set forth below, we will affirm.
I.
We review the district court’s legal conclusions de novo, but we review “the factual findings underpinning these legal conclusions ... for clear error.” Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991). We review the court’s decision to grant continuances for abuse of discretion. United States v. Fields, 39 F.3d 439, 444 (3d Cir.1994).
As we write primarily for the parties who are familiar with the facts of this case, *699we need not recite the factual or procedural history in detail.
Gutierrez argues that the district court abused its discretion in granting continuances under the test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 83 L.Ed.2d 101 (1972), and that his rights under the Speedy Trial Act were also violated.
II.
The Sixth Amendment requires the government to make a diligent, good faith effort to promptly bring a defendant to trial. Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). In Barker v. Wingo, the Supreme Court established a balancing test to determine when delays violated that Sixth Amendment right. Pursuant to that test, courts must consider: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. 2182.
The first Barker factor — the length of delay — triggers a speedy trial inquiry as there is no need to undertake a speedy trial analysis unless the length of any delay is sufficient to be “presumptively prejudicial.” Id. at 530, 92 S.Ct. 2182. The outcome of that initial inquiry depends on the facts and circumstances of each case. Id. at 530-31, 92 S.Ct. 2182 (finding that the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge). Generally, delays that approach twelve months are sufficient to trigger a speedy trial inquiry under Barker. See Doggett v. United States, 505 U.S. 647, 651 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Nevertheless, delay alone, is not sufficient to establish a speedy trial violation under the Sixth Amendment. See id.
Here, the time that lapsed between Gutierrez’s arraignment and trial is sufficient to warrant an inquiry under Barker. Accordingly, the district court appropriately considered each of the Barker factors, and concluded that Gutierrez’s right to a speedy trial under the Sixth Amendment had not been violated.
The court concluded that although Gutierrez did “timely and consistently assert[] his speedy trial rights,” both the second and fourth Barker factors weighed heavily against him. United States v. Gutierrez, No. 06-CR-582-4, 2007 WL 4302812, at *11 (E.D.Pa. December 6, 2007). The court found that there was a valid and significant reason to delay the trial and Gutierrez suffered no prejudice. We agree.
Plea negotiations were ongoing and they appeared to be progressing toward a non-trial disposition. More importantly, Gutierrez had filed twenty five pretrial motions, many of which required hearings, findings of fact, and memorandum opinions and orders. Gutierrez can not now complain because the court delayed his trial long enough to thoughtfully consider and dispose of the numerous motions he filed.
Moreover, the Supreme Court has identified the key interests that the Sixth Amendment is designed to protect, “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532, 92 S.Ct. 2182. The Court has stressed the last interest because delay can result in loss of defense witnesses or dim memories of witnesses whose recollection may be crucial to a credible defense. Id.
Yet, Gutierrez has not identified any specific prejudice resulting from his pretrial delay. He has not established that the delay jeopardized the testimony of any defense witness, nor can he argue that his pretrial detention was oppressive, or re*700sponsible for undue anxiety or concern. United States v. Gutierrez, No. 06-CR-582-4, 2007 WL 4302812, at *12 (E.D.Pa. December 6, 2007). On the contrary, the district court found that the delay inured to Gutierrez’s benefit because it facilitated his ability to defend himself by allowing time for the court to thoughtfully respond to his pretrial motions.
III.
Similarly, the district court did not abuse its discretion in granting a continuance under the 70-day requirement in the Speedy Trial Act. The Speedy Trial Act requires that a defendant be brought to trial 70 days from the date of information, indictment, or arraignment, whichever occurs last. 18 U.S.C. § 3161(c)(1). The statute, however, provides exceptions for certain types of delays. 18 U.S.C. 3161(h). The district court found that at least three of these exceptions applied here.
The court found that the delay was justified under 18 U.S.C. § 3161(h)(8)(A), which allows for a delay if the “ends of justice” served by the delay outweigh the interests of the public and the defendant in a speedy trial. A district court is “required to set out its reasons for granting an ‘ends of justice’ continuance” to provide a record for appellate review, otherwise “the time is not excludible.” United States v. Brooks, 697 F.2d 517, 520 (3d Cir.1982). Additionally, once a district court grants a continuance we have “strongly urged” district courts “not to wait and rely on counsel to inform them when defendants are ready to go to trial.” United States v. Lattany, 982 F.2d 866, 883 (3d Cir.1992).
Here, the district court ruled that this was a complex case because of the number of defendants, and the fact that the indictment contained fifty separate charges. See United States v. Fields, 39 F.3d 439, 444 (3d Cir.1994) (holding that an “ends of justice” continuance may be appropriate where the case is “unusual or complex”). Although Gutierrez attempts to refute that finding as to him by arguing that he was only charged in three counts, that does not reduce the overall complexity of the case. He does not complain that his case should have been severed to allow a more prompt resolution of his charges, and the record would not support a finding of prejudice even if he made such a claim. Moreover, the court outlined specific deadlines for pre-trial matters, scheduled a definitive new date for the trial, and adequately explained its reasons for granting an “ends of justice” continuance.
We also agree with the district court’s conclusion that the delay was justified under 18 U.S.C. § 3161(h)(1)(F), which allows delay resulting from the filing and deciding of pretrial motions. As the district court noted, “[ajlthough Gutierrez objected to both continuances, he also took advantage of the time they provided, filing over two dozen pretrial motions.” United States v. Gutierrez, No. 06-CR-582-4, 2007 WL 4302812, at *15 (E.D.Pa. December 6, 2007).
The district court also applied the exception that allows for delay beyond the 70 day period where it would be unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself, 18 U.S.C. § 3161 (h)(8)(B)(ii). Pointing to the approximately 47,000 pages of discovery provided by the government, the district court reasoned a continuance was necessary “to alleviate the burdensome discovery in this case by providing the defendants ample time to review the government’s evidence against them.” That was clearly not only reasonable, but necessary for a fair resolution of the charges in the indictment.
*701IV.
For the foregoing reasons, we will affirm the orders of the district court denying Gutierrez’s motion to dismiss the indictment.
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OPINION
PER CURIAM.
Petitioner Andrei Kheinovich Tiit, a native and citizen of Estonia, seeks review of a final order of removal. For the reasons discussed below, we conclude that we lack jurisdiction over the agency’s decision with regard to the timeliness of Tiit’s asylum claim, and that Tiit has waived any challenge to the agency’s denial of his claims for withholding of removal and relief under the Convention Against Torture (“CAT”). As a result, we will deny the petition for review.
*702I.
Tiit entered the United States in August 2000, and was given authorization to stay until February 14, 2001. Tiit, however, did not leave at that time. On November 20, 2003, Tiit filed an application for asylum, withholding of removal and relief under the CAT. He alleged past and prospective persecution based on his efforts to stop corrupt practices in the Estonian prison he was employed at from 1995 through 2000.
Tiit testified before the IJ that some prison officials worked with prisoners to smuggle contraband into the prison, that he received threats over the phone to both his personal and his family’s safety, and that when he reported the corruption to prison officials they simply ignored him. In addition, Tiit testified that in December 1997, three unknown assailants came to his carpentry shop and broke three of his fingers with a piece of wood. Shortly after Tiit reported the incident to the police, his father was allegedly murdered. Tiit also testified that he was coerced into attending a meeting wherein he was told that unless he cooperated with the criminal enterprise at the prison, his family would be killed. At that point, Tiit decided that it was not safe for him and his family to remain in Estonia, and he left for the United States. His wife, who was pregnant at the time of Tiit’s departure, came to the United States roughly one year later.
The IJ determined that Tiit was not entitled to any of the requested relief. The IJ first found that Tiit had failed to file his application for asylum within the one-year deadline, and that there were insufficient grounds to waive the deadline. The IJ also found that Tiit’s testimony with regard to past persecution was not credible and lacked support in the record. The BIA dismissed Tiit’s appeal. For substantially the reasons given by the IJ, it concluded that the IJ’s adverse credibility determination was not clearly erroneous, that the harm Tiit claimed to have suffered “did not rise to the level of persecution[,] and that there [was] insufficient evidence to show a clear probability of persecution or torture if forced to return to Estonia.” Tiit filed this petition for review.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir.2001). However, we lack jurisdiction to review the BIA’s determination that Tiit’s application for asylum is untimely. See 8 U.S.C. § 1158(a)(3) (stating that “[n]o court shall have jurisdiction to review any determination of the Attorney General” relating to the timeliness of an asylum application); Sukwanputra v. Gonzales, 434 F.3d 627, 633 (3d Cir.2006). Therefore, the scope of our review is limited to Tiit’s claims for withholding of removal and CAT relief. See Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir.2003).1
III.
We conclude that Tiit, who is represented by counsel, has effectively waived his challenge to the denial of his withholding and CAT claims. See Ghana v. Holland, 226 F.3d 175, 180 (3d Cir.2000); Host v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993). As the Government rightly observes, “Tiit mentions the denial of his withholding of removal claim in the ‘Summary of the Argument’ portion of his brief, and asserts in a sub-caption in the argument section that he presented ‘sufficient evidence’ that he will be tortured if he *703returns to Estonia, but he presents no substantive argument in the body of his brief to support either claim.” (Gov’t Br. at 18-19.) We have noted in similar circumstances that “Rule 28(a) of the Federal Rules of Appellate Procedure and our Local Appellate Rule 28.1(a) require appellants to set forth the issues raised on appeal and to present an argument in support of those issues in their opening brief.” Ghana, 226 F.3d at 180. Having failed to comply with those rules, Tiit has “abandoned and waived” his non-asylum claims.2 Kost, 1 F.3d at 182.
Accordingly, we will deny the petition for review.
. Although Tiit failed to raise his CAT claim we have jurisdiction to consider this claim because the BIA addressed it sua sponte. See Lin v. Att’y Gen., 543 F.3d 114, 123-24 (3d Cir.2008).
. Even without this waiver, we would still deny Tiit’s petition for review. The agency’s adverse credibility determination is supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Issiaka v. Att’y Gen., 569 F.3d 135, 137 (3d Cir.2009) (internal quotation marks omitted). And the record fails to demonstrate that it is “more likely than not” that Tiit will be tortured by, “at the instigation off,] or with the consent or acquiescence of a public official or other person acting in an official capacity.” Pierre v. Att'y Gen., 528 F.3d 180, 186, 189 (3d Cir.2008) (en banc) (internal quotation marks omitted); 8 C.F.R. §§ 208.17(a), 208.18(a)(1).
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OPINION OF THE COURT
STAPLETON, Circuit Judge:
Billie Jo Gilroy appeals from a summary judgment entered in favor of the Commissioner in this Social Security disability case. Because we write only for the benefit of the parties, we assume familiarity with the facts and the proceedings in the District Court. We will affirm.
I.
The record before the ALJ contained reports from a treating psychiatrist, Dr. Wang. One of those reports, dated February 23, 2006, includes a Global Assessment of Functioning (“GAF”) score of 45. Gilroy insists that the ALJ erred by failing to “explain why he was rejecting [that score] or how he thought it could be reconciled with his own conclusions.” Appellant’s Br. at 10.
As Gilroy correctly points out, Dr. Wang’s report “did not express any opinions regarding specific limitations” that Gilroy had. Appellant’s Br. at 14. It did, however, report a GAF score of 45. A GAF score of 41 to 50 indicates that in the opinion of the evaluator the patient has:
Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).
Diagnostic and Statistical Manual of Mental Disorders, TR at 34 (boldface in original). A GAF score does not have a direct correlation to the severity requirements of the Social Security mental disorder listings, 66 Fed.Reg. 50764-5 (2000), and a GAF score of 45, if credited, would not require a finding of disability. In the con*716text of his report, Dr. Wang’s GAF 45 rating is fairly understood to convey that he believed Gilroy had a serious impairment in social or occupational functioning. This belief is not further explained, however.
The ALJ concluded that Gilroy had not been under a disability within the meaning of the Social Security Act from June 15, 2003, through April 11, 2007, the date of his decision. His opinion summarizes the evidence in the context of the five-step analysis required by the regulations. It found that the claimant had the following medically ascertainable “severe” impairments: bipolar disorder, major depression disorder, and post-traumatic stress disorder. With appropriate explanations, it further concluded that the claimant had “moderate” limitations with respect to maintaining social functioning and with respect to maintaining concentration, persistence and pace at work-related tasks. With respect to Gilroy’s overall residual functional capacity, the ALJ ultimately concluded as follows:
I find that the claimant does not have any exertional limitations. She retains the ability to perform simple, routine, repetitive tasks and make simple decisions. Her social anxiety limits her ability to interact with supervisors and coworkers and precludes interaction with the public. Additional limitations are not well supported by the totality of evidence.
App. at 31a.
The ALJ’s opinion clearly reflects substantial evidence supporting this conclusion and adequately explains why the evidence relied upon by Gilroy did not persuade him that she had more serious limitations. While it did not make explicit reference to Dr. Wang’s one-time rating of GAF 45, it did make repeated references to observations from Dr. Wang’s reports. Given the failure of Dr. Wang to “express any opinions regarding specific limitations” or otherwise to explain the basis for his GAF rating, we are at a loss to understand how the ALJ could have responded to that rating in a more satisfactory manner. As we have noted, he did explain his views on the degree of Gilroy’s limitations with respect to social and occupational functioning and did conclude that “her social anxiety limits her ability to interact with supervisors and coworkers and precludes interaction with the public.” This conclusion is not in conflict with Dr. Wang’s GAF rating, and no further comment was required.
II.
Both Gilroy and her husband testified before the ALJ concerning her impairments and their impact on her ability to work. Their testimonies did not materially differ. The ALJ found their testimony “only partially credible”:
I find the testimony concerning the claimant’s impairments and their impact on her ability to work only partially credible in light of the desci’iption of her daily activities and life style, the objective medical evidence of record and treating medical opinions regarding the severity of the claimant’s condition and functional limitations. The testimony of the claimant’s spouse has also been considered.
App. at 30a. Gilroy insists that the ALJ erred by failing to explain his rejection of her husband’s testimony. We are unpersuaded. In context, we understand from the above-quoted segment of his opinion that the ALJ only partially credited her husband’s testimony for the same reasons that he only partially credited hers.
III.
The sixth sentence of 42 U.S.C. § 405(g) provides in relevant part that the *717“Court may ... at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” Gilroy invoked this authority by asking the District Court to remand her case to the Commissioner so that three additional items of evidence could be considered: (1) a report of a mental evaluation conducted by Dr. Lindsay Groves on August 30, 2007; (2) a report of a mental evaluation conducted by Dr. Chantal Deines on June 6, 2008; and (3) a notice of award of Social Security disability benefits dated August 1, 2008. The District Court declined to remand for this purpose. It did not abuse its discretion in doing so.
As we explained in Szubak v. Secretary of Health & Human Services, 745 F.2d 831, 833 (3d Cir.1984) (internal citations omitted):
As amended in 1980, § 405(g) now requires that to support a “new evidence” remand, the evidence must first be “new” and not merely cumulative of what is already in the record. Second, the evidence must be “material;” it must be relevant and probative. Beyond that, the materiality standard requires that there be a reasonable possibility that the new evidence would have changed the outcome of the Secretary’s determination. An implicit materiality requirement is that the new evidence relate to the time period for which benefits were denied, and that it not concern evidence of a later-acquired disability or of the subsequent deterioration of the previously non-disabling condition. Finally the claimant must demonstrate good cause for not having incorporated the new evidence into the administrative record.
Gilroy has failed to show good cause why Dr. Groves’ evaluation and report could not have been secured for presentation to the ALJ. She also has failed to show that it would create a reasonable possibility of a change in the ALJ’s decision. Dr. Groves’ report adds little to that of Dr. Wang and does nothing to alter the facts supporting the ALJ’s finding that the claimant’s mental impairments were severe, but not disabling.1
*718The issue before the ALJ and the District Court was whether Gilroy was disabled between June 15, 2003, and April 11, 2007. Dr. Deines’ psychological evaluation was sought and proffered in support of a subsequent application for Social Security disability and took place on June 6, 2008, a year and two months after the ALJ’s decision in these proceedings. Dr. Deines’ report and the subsequent award of benefits it helped to secure address the issue of Gilroy’s capacity to work during a period of time distinct from that before the ALJ. The District Court did not abuse its discretion in concluding that neither was material to the issue before him.
IV.
For the foregoing reasons, the judgment of the District Court will be affirmed.
. The Commissioner's brief accurately summarized those facts as follows:
After she allegedly became disabled, Gilroy worked as a nurse's aide and a labor packager.
Gilroy went shopping with her spouse, cleaned, washed laundry, took out 6 the trash, cared for her personal needs without assistance, cooked, vacuumed, and did not require frequent rest breaks during the day; During her alleged period of disability, Gil-roy got married and lived with her spouse, received visits from a friend, and socialized with some family members;
By her own admission, Gilroy could understand and follow instructions, make her own decisions, and help her five-year-old son with his homework;
Gilroy received minimal mental health treatment during the relevant period, and attended her first psychiatric evaluation in February 2006, almost three years after her alleged disability onset date;
Gilroy has never required a mental health hospitalization through the date of the ALJ's decision;
Gilroy’s medical records showed that her symptoms improved with treatment;
Gilroy’s records reflect noncompliance with treatment;
At appointments between February 2006 and November 2006, Gilroy’s treating psychiatrist, Dr. Wang, reported that she had adequate insight, adequate judgment, adequate impulse, control, normal speech, fair grooming, fair eye contact, a goal-directed thought process, and grossly intact cognition; and
State agency psychologist, Dr. Santilli, reviewed the evidence and determined that Gilroy’s impairments did not meet or equal *718any listed impairment and that she retained the ability to work. Appellee's Br. at 43-44 (record citations omitted).
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OPINION OF THE COURT
FISHER, Circuit Judge.
Willie Andrew Hampton pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and the District Court sentenced him to 180 months of imprisonment. On appeal, Hampton challenges the District Court’s credibility determinations and subsequent denial of his motion to suppress, the applicability of an enhanced sentence under the Armed Career Criminal Act, and the constitutionality of 18 U.S.C. § 922(g). For the reasons set forth below, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this ease. Therefore, we will set forth only those facts necessary to our analysis.
The circumstances giving rise to Hampton’s conviction occurred on January 16, 2006, when three Clairton Police Department officers, Officer Sean McGrail, Officer Michael Merlino, and Officer Richard Bonczek, conducted the traffic stop of a rented minivan based on an allegedly inoperable passenger side brake light. Norman Collins was driving the vehicle, and Hampton was a passenger. During the stop, the officers, discovering that neither the driver nor Hampton had a valid driver’s license, decided to impound the minivan. Officer McGrail asked Collins to step out of the vehicle, while Officers Merlino and Bonczek explicitly instructed Hampton to remain inside the minivan. Hampton refused to do so, and a struggle ensued. During the scuffle, one of the officers felt a gun and notified his colleagues. It took all three officers to finally overcome Hampton. After subduing and securing him, the police found two loaded 9mm handguns on Hampton’s person and discovered that Hampton was wearing a bulletproof vest underneath his coat. Hampton was subsequently charged as being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
Hampton filed a motion to suppress, arguing that the firearms were obtained in violation of his Fourth Amendment rights. At the suppression hearing, Officer McGrail testified that he conducted the traffic stop due to an unlit passenger side brake light and that he communicated the problem to Collins. (App. at 76-77.) He also explained why he did not relay the problem in his radio transmission: “It’s a practice of mine [that] I never broadcast the reason for my traffic stops.” (App. at 91.) Gary W. McDonough, a co-owner of the rental service that rented the minivan, testified that the minivan’s brake lights appeared to be working both before and after the incident, but conceded that it was possible for a loose wire to cause the light to operate intermittently. (App. at 109-11, 140.) At a second suppression hearing,1 Collins testified that the police did not demonstrate to him that the brake light was inoperable (App. at 177), while Officer McGrail reiterated his testimony that he informed Collins of the unlit brake light. (App. at 215-16.) The District Court, finding Officer McGrail’s testimony credible *726and Collins’ testimony not credible, denied the motion to suppress. (App. at 7, 9.)
Hampton eventually pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The Plea Agreement contained an express waiver of Hampton’s appellate rights, with several discrete exceptions:
“Willie Andrew Hampton waives the right to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, subject to the following exceptions:
(a) If the United States appeals from the sentence, Willie Andrew Hampton may take a direct appeal from the sentence.
(b) If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, Willie Andrew Hampton may take a direct appeal from the sentence.
(c) As a condition of his guilty plea, Willie Andrew Hampton may take a direct appeal from his conviction limited to the following two issues: (1) whether 18 U.S.C. § 922(g) is unconstitutional under the Commerce Clause, either on its face or as applied in this case; and (2) whether the traffic stop violated the defendant’s Fourth Amendment rights....
The foregoing reservations of the right to appeal on the basis of specified issues do not include the right to raise issues other than those specified.”
(App. at 280-81, ¶ 9.) At the plea hearing, Hampton stated that he understood that the judge had yet to calculate his sentence, which could be more or less severe than the sentencing guideline range. (App. at 260-61.) Thereafter, the Government repeated the Plea Agreement, including the appellate waiver, in open court. (App. at 261-63.)
The Presentence Investigation Report classified Hampton as an armed career criminal under § 924(e) due to his three prior serious drug offense convictions. Hampton’s final offense level of 31 and criminal history category of IV, combined with the 15-year statutory minimum pursuant to § 924(e), yielded a sentencing guideline range of 180 to 188 months of imprisonment. The District Court sentenced Hampton to 180 months of imprisonment, and Hampton filed a timely appeal.
II.
The District Court had jurisdiction by virtue of 18 U.S.C. § 3231, and we have jurisdiction to review the District Court’s judgment of sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. ‘We review a District Court’s denial of a motion to suppress for clear error as to the underlying factual findings and exercise plenary review over the District Court’s application of the law to those facts.” United States v. Lockett, 406 F.3d 207, 211 (3d Cir.2005). However, we will not set aside a District Court’s credibility determination when supported by the record. United States v. Kole, 164 F.3d 164, 177 (3d Cir.1998). Although we exercise plenary review over the constitutionality of the application of the Armed Career Criminal Act, United States v. Walker, 473 F.3d 71, 75 (3d Cir. 2007), we must determine as a threshold matter whether Hampton’s appellate waiver prevents us from exercising our jurisdiction to review the merits of Hampton’s appeal, United States v. Corso, 549 F.3d 921, 926 (3d Cir.2008). Finally, we exercise plenary review over the constitutionality of 18 U.S.C. § 922(g)(1). United States v. Singletary, 268 F.3d 196, 198 (3d Cir. 2001).
*727III.
On appeal, Hampton raises three challenges to his judgment of sentence. First, he argues that the District Court committed clear error by denying Hampton’s motion to suppress. Second, he contends that the District Court violated his Equal Protection rights under the Fifth Amendment by counting his prior convictions as three under the Armed Career Criminal Act. Lastly, he argues that Congress exceeded its power under the Commerce Clause in enacting 18 U.S.C. § 922(g)(1). We will address each contention in turn.
A.
Hampton argues that the District Court committed clear error when it determined that the minivan had an unlit brake light and thus rejected Hampton’s argument that his Fourth Amendment rights were violated. Because the District Court denied Hampton’s motion to suppress' “[bjased on [its] findings regarding the credibility of the witnesses to this incident” (App. at 9), Hampton essentially challenges the District Court’s credibility determinations regarding Officer McGrail and Collins.
It is well settled that where the record supports a district court’s credibility determination, it is not for us to set aside. Kole, 164 F.3d at 177. This is because “[credibility determinations are the unique province of a fact finder.” Id. Here, the District Court chose to believe Officer McGrail’s testimony that the minivan had an unlit passenger side brake light and to disbelieve Collins’ testimony that the police did not demonstrate to him that the brake light was inoperable. Because the record — Officer McGrail’s repeated testimony and McDonough’s testimony that it was possible for the brake light to operate intermittently — supports this determination, we will not set it aside here. Therefore, since an unlit brake light is a violation of 75 Pa. Cons.Stat. § 4303(b) and “any technical violation of a traffic code legitimatizes a stop,” United States v. Mosley, 454 F.3d 249, 252 (3d Cir.2006) (citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)), the District Court did not err by rejecting Hampton’s Fourth Amendment claim and denying his motion to suppress.
B.
Hampton also contends that the application of a sentence enhancement under the Armed Career Criminal Act violates the Equal Protection Clause of the Fifth Amendment by treating defendants who are armed career criminals, see 18 U.S.C. § 924(e), U.S.S.G. § 4B1.4, differently from defendants who are unarmed career offenders, see 28 U.S.C. § 994(h), U.S.S.G. §§ 4A1.1, 4A1.2(a)(2), 4B1.1, 4B1.2. (App. at 38.) More specifically, Hampton challenges the fact that the Armed Career Criminal Act counts his prior convictions as three separate convictions, when the same convictions are counted only once under the career offender guidelines. (App. at 38-40.) The Government, contending that Hampton waived this argument in his Plea Agreement, requests that we decline to reach this issue.
We will decline to review the merits of Hampton’s appeal if the issue he pursues falls within the scope of his appellate waiver and if he knowingly and voluntarily agreed to the waiver, unless enforcing the waiver would work a miscarriage of justice. Corso, 549 F.3d at 927. We have stated that “waivers of appeals should be strictly construed,” United States v. Khattak, 273 F.3d 557, 562 (3d Cir.2001), and that the “defendant bears the burden of presenting an argument that would render his waiver unknowing or involuntary,” *728United States v. Mabry, 536 F.3d 231, 237 (3d Cir.2008).
Here, we find not only that Hampton waived his Equal Protection claim in his Plea Agreement, but also that his claim is without merit. First, it is clear from the plain language of the waiver, see Section (I), supra, that Hampton’s Equal Protection claim is not one of the specified exceptions: Hampton’s 180-month sentence is below the statutory maximum and within the guideline range, and Hampton’s Equal Protection claim is distinct from the constitutionality of 18 U.S.C. § 922(g) under the Commerce Clause and Hampton’s Fourth Amendment rights.
Second, Hampton has failed to meet his burden of proving that the appellate waiver was not knowing and voluntary. At the plea hearing, the District Court directed Hampton’s attention to the Government’s description of the Plea Agreement, and the Government described the appellate waiver provision. (App. at 261-62.) The Court then asked Hampton whether he still wished to enter a plea of guilty. (App. at 273.) After clarifying a separate issue regarding theft, Hampton signed the Plea Agreement in open court.2 (App. at 273-76.)
Finally, an examination of the merits of Hampton’s Equal Protection claim demonstrates that enforcement of the appellate waiver will not result in a miscarriage of justice. We have stated that “unless a statute creates a suspect classification or impinges upon a fundamental interest, it will be upheld if the purpose of the classification bears some rational relationship to a legitimate state purpose.” United States v. Hawkins, 811 F.2d 210, 216 (3d Cir.1987). In Hawkins, we declined to question Congress’ finding that most robberies and burglaries are committed by a small number of career criminals. Id. at 216-17. Accordingly, we held that there is a rational basis3 for distinguishing between three-time robbers/burglars and three-time other-category felons, such as murderers or kidnappers, under the Armed Career Criminal Act. Id. If Congress was rational in enhancing the sentences of robbers/burglars and not murderers and kidnappers, Congress was clearly rational in treating armed career criminals more severely than unarmed career criminals. Therefore, because Hampton’s Equal Protection claim is without merit, enforcement of the appellate waiver will not result in a miscarriage of justice.
C.
Lastly, we turn to Hampton’s argument that Congress exceeded its powers under the Commerce Clause in enacting 18 U.S.C. § 922(g)(1). Hampton recognizes that we examined this precise issue in detail in Singletary and held directly to the contrary. 268 F.3d at 204-05 (holding that “proof ... that the gun had traveled in interstate commerce, at some time in the past, was sufficient to satisfy the interstate commerce element” of the statute). Since Singletary remains the law of this circuit, precedent prevents us from entertaining Hampton’s argument. See United States v. Coward, 296 F.3d 176, 183 (3d Cir.2002) (rejecting the defendant’s challenge to § 922(g) in light of the binding effect we give to precedential opinions of this court).
*729IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
. In light of Officer McGrail’s testimony at the original suppression hearing, Hampton filed a motion to reopen the record so that Collins could be called to testify to his knowledge of the brake light’s condition. The District Court granted the request and scheduled a second suppression hearing.
. Even assuming, arguendo, that the waiver was not knowing and voluntary, Hampton’s Equal Protection claim still fails on the merits.
. Hampton concedes that the rational basis standard applies.
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https://www.courtlistener.com/api/rest/v3/opinions/8474230/
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OPINION
PER CURIAM.
Appellants William and Linda Tanchak (“the Tanchaks”) appeal fi-om an order of *730the District Court that denied their motion for summary judgment and granted in part the Government’s motion for summary judgment. Pursuant to the latter, the District Court ordered that the Government’s tax assessments against William Tanchak be reduced to judgment, that William Tanchak owe accruing statutory interest on that judgment, that federal tax liens attach to all of William Tanchak’s property and rights to property, and that the Tanc-haks pay one-half the rental value of their real property to the Government every month until the judgment is satisfied. We will affirm.
I.
On September 24, 2007, the Government filed an amended complaint against the Tanchaks, seeking to reduce to judgment unpaid federal income tax assessments against William Tanchak for the 1989, 1990, 1991, 1993 and 1994 tax years; as of May 2008, $619,890.05 remained due and owing for those assessments.1 The Government also sought to foreclose its federal tax liens on William Tanchak’s interest in the real property co-owned by his wife. Specifically, the Government requested that the real property be sold in accordance with the judicial sale provisions of 28 U.S.C. §§ 2001 and 2002. The Government also sought costs and attorney’s fees incurred in the commencement and prosecution of the action against the Tanchaks.
The Government and William Tanchak filed cross-motions for summary judgment. Tanchak moved on the grounds that the Government’s claims were time-barred pursuant to 26 U.S.C. § 6502(a)(1), that he had no taxable income during the years he was assessed deficiencies, that the Government had failed to produce any evidence of his receiving income during the tax years in question, and that the Government should not have been permitted to file its amended complaint. For its part, the Government supported its motion with evidence of the income taxes, interest and penalties in the amounts shown in the tax assessments against William Tanchak, as well the notices of deficiency directly sent to him.
The District Court denied William Tanc-hak’s motion, concluding, among other things, that the Government had filed its original complaint twenty-two days before the applicable ten-year statute of limitations had elapsed. As to the Government’s motion, the District Court concluded that the Government’s tax assessments were entitled to a presumption of correctness, and that William Tanchak’s “self-serving statement that he had no taxable income for the 1989, 1990, 1991, 1993 and 1994 tax years” was insufficient to establish a genuine issue of material fact with regard to the validity or correctness of those assessments. As a result, the District Court granted the motion “insofar as it requests judgment on taxes, but [it] decline[d] to award fees and costs and force a sale of real property.” Instead, the District Court ordered the Tanchaks to “pay over one-half of the imputed rental value of the real property, in the amount of $1,000.00 every month, to [the Government].” The Tanchaks appealed.
II.
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291, and exercise plenary review of the District Court’s order granting summary judgment. See Allstate Settlement Corp. v. Rapid Settlements, Ltd., 559 F.3d 164, 169 (3d Cir. 2009). Summary judgment is proper *731where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We view the facts in the light most favorable to the non-mov-ants, and draw all reasonable inferences in their favor. See Allstate Settlement Corp., 559 F.3d at 169. We may affirm the District Court on any grounds supported by the record. See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000).
III.
In their brief2 the Tanchaks present two arguments why the District Court erred in partially granting summary judgment for the Government.3 First, the Tanchaks reassert their contention that the Government’s complaint is time-barred pursuant to the applicable ten-year statute of limitations. Second, the Tanchaks reassert that since William Tanchak “had no income for the years in question,” he is not liable for the unpaid income taxes that the Government has attributed to him. For substantially the reasons provided in the District Court’s opinion, we conclude that both arguments are wholly lacking in merit.
As to their statute of limitations argument, the Tanchaks contend that the relevant dates are March 6, 1995 (when the Government allegedly first performed a Form 4340 assessment for William Tanc-hak), April 6, 1997 (when the Government allegedly revised its Form 4340), and March 29, 2007 (when the Government filed its complaint). The Tanchaks argue that the District Court erroneously relied upon the date when the Form 4340 was allegedly revised in finding that the Government’s complaint was not time-barred. The Tanchaks’ allegations, however, are at odds with the record, which demonstrates that the Tanchaks were not assessed a deficiency for unpaid income taxes until April 21, 1997, and that the March 6, 1995 date refers to the date when the Government filed a substitute tax return on behalf of William Tanchak pursuant to 26 U.S.C. § 6020. (Dist Ct. dkt # 24, Ex. 2., pgs. 8-17); see also 26 U.S.C. § 6501(b)(3) (“the execution of a return by the Secretary pursuant to the authority conferred by [§ 6020] shall not start the running of the period of limitations on assessment and collection”).
The Tanchaks’ argument concerning William Tanchak’s lack of income during the relevant tax years is similarly unfounded. In particular, the Tanchaks’ lament that “[i]t is difficult to document no income,” without more, does not come close to carrying their “burden of proving, by a preponderance of the evidence that [the IRS’s] assessment is erroneous.” Francisco v. United States, 267 F.3d 303, 319 (3d Cir.2001). And as the District Court appropriately noted, the Tanchaks failed to avail themselves of any apparent means for substantiating their contention. *732(Dist. Ct. Op. at 10) (“Mr. Tanchak ... fails to submit evidence that could controvert the Government’s evidence that he received income from certain delineated sources, such as unemployment and self-employment income. Mr. Tanchak offers no records from the State’s Unemployment Insurance Benefit Claims, for example, to show he never received this form of income”). Therefore, even viewing the facts in the light most favorable to the Tanchaks, and drawing all reasonable inferences in them favor, we are convinced that there are no genuine issues of material fact and that the Government is entitled to judgment as a matter of law.
Accordingly, we will affirm the order of the District Court.
. The Government originally filed its complaint on March 29, 2007. (Dist. Ct. dkt # 1.) On September 21, 2007, the Magistrate Judge granted the Government's motion for leave to file the amended complaint. (Dist. Ct. dkt # 10.)
. Like the District Court, we also take note of a Bob/Robin Vinik purporting to be "on the brief" for the Tanchaks’ filings, all of which were signed, though, by William Tanchak only. (Dist. Ct. dkt # 22, Ex. 1); (Appellant’s Br. at 1); (Appellant’s Reply Br. at 1). We take judicial notice of the fact that Mr. Vinik, who does not appear to be an attorney, has a history of involving himself in law suits to which he is not party, see, e.g., De Vesa v. Dorsey, 134 N.J. 420, 634 A.2d 493, 495 (1993), and strongly caution him against the unauthorized practice of law, should he be so engaged.
. The Tanchaks do not challenge the District Court’s order insofar as it mandates that they pay the Government monthly installments of one-half the rental value of their real property, and therefore this issue is waived. See Laborers' Int'l Union of N. Am. v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir.1994).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474232/
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OPINION
PER CURIAM.
Petitioner Shah Seed is a native and citizen of Pakistan. He seeks review of a *733final order of removal. We do not have jurisdiction to review the denial of Seed’s asylum claim on timeliness grounds. In addition, we conclude that substantial evidence supports the Immigration Judge’s (“IJ”) determination that Seed is unlikely to be persecuted or tortured if removed to Pakistan. As a result, it was proper for the Board of Immigration Appeals (“BIA”) to adopt and affirm the IJ’s decision pursuant to Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and we will deny Seed’s petition for review.
I.
Seed entered the United States in November 1998. He stayed longer than was permitted by his work visa. Seed was issued a Notice to Appear in February 2003, and was charged as an overstay in violation of 8 U.S.C. § 1227(a)(1)(B). He applied for asylum, withholding of removal, and protection under the Convention Against Torture. At a hearing before the IJ, Seed testified that he had been a member of the Pakistan Peoples Party (“PPP”) since 1992. He was the PPP president for his village, and his duties primarily consisted of recruitment activities. Seed testified to being arrested in March 1998. He was detained for a few days, and during that time he was allegedly beaten by the police. Seed also testified that when he told the police he belonged to the PPP, he was released from prison. He testified that he fears returning to Pakistan because his support for the PPP will lead to both his arrest by the Pakistani government and persecution by the militant Islamic group Tehrik-e-Nafaz-e-Shariat-e-Mohammadi (“INSM”).1
The IJ denied all requested relief. She first determined that Seed was ineligible for asylum because he had failed to apply for it within one-year of his arrival to the United States. The IJ next determined that Seed’s testimony and supporting documents were insufficient to establish eligibility for withholding of removal, and insufficient to “establish that anyone would be interested in torturing him for any reason upon return to Pakistan.” (A.R.87.) The BIA affirmed the decision of the IJ in toto and it dismissed Seed’s appeal. Seed filed this petition for review.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir.2001). However, we lack jurisdiction to review the BIA’s determination that Seed’s application for asylum is untimely. See 8 U.S.C. § 1158(a)(3) (stating that “[n]o court shall have jurisdiction to review any determination of the Attorney General” relating to the timeliness of an asylum application); Sukwanputra v. Gonzales, 434 F.3d 627, 632-33 (3d Cir.2006). Therefore, the scope of our review is limited to Seed’s claims for withholding of removal and CAT relief. See Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir.2003).
Where, as here, the BIA expressly adopts and affirms the IJ’s decision pursuant to Matter of Burbano, 20 I. & N. Dec. at 874 (BIA may adopt or affirm IJ’s decision, in whole or in part, when it is in agreement with reasoning and result of that decision), we review the decision of both the IJ and the BIA to determine *734whether the BIA’s decision to defer to the IJ was appropriate. See Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir.2007). We review the IJ’s factual findings for substantial evidence, see Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007), upholding them “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc).
III.
The IJ’s determinations that Seed is unlikely to be subject to persecution and torture upon removal to Pakistan, see Pierre v. Att’y Gen., 528 F.3d 180, 186 (3d Cir.2008) (en banc) (describing preponderance standard for CAT claims); Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.2003) (describing preponderance standard for withholding of removal claims), are supported by substantial evidence. The full extent of Seed’s alleged abuse in Pakistan is found in the following excerpts from direct examination:
COUNSEL: Did you have any contact with the police in Pakistan?
SEED: Yes. I was arrested by police on March 5,1998.
* * *
COUNSEL: What happen [sic] to you while you were in police custody if anything happen [sic] to you?
SEED: They beat me up. I had wounds all over my hands and all over my body.
COUNSEL: Did you seek any treatment for these wounds?
SEED: I did not do any special treatment or anything like that. Example [sic], I did not go [to] the hospital or anything like that. No.
(A.R.119, 121.) We agree with the IJ that this testimony, standing alone, is clearly insufficient to establish past persecution. See Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (“persecution connotes extreme behavior, including ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom’ ”) (quotation omitted).
Furthermore, the IJ rightly rejected Seed’s allegation that if removed he will be persecuted or tortured because of his support for the PPP. As the IJ noted, Seed “testified earlier that all of his family members were supporters of the PPP, that they even have a flag flying from their house, and yet no harm has come to any of his family members.” (A.R.60.) That testimony significantly cuts against Seed’s allegation. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) (“[W]hen family members remain in petitioner’s native country without meeting harm, and there is no individualized showing that petitioner would be singled out for persecution, the reasonableness of a petitioner’s well-founded fear of future persecution is diminished”). Further bolstering the IJ’s determination is her finding that “[t]he Department of State Report on Human Rights Practices, while it describes that certainly the political situation in Pakistan can be tumultuous, there is no evidence ... that someone in [Seed]’s position would be targeted for harm upon return to Pakistan, especially someone whose [sic] been away since 1998 and not been involved in the United States in politics.” (A.R.62.) As the IJ’s decision is supported by substantial evidence, the BIA did not err in adopting and affirming that decision pursuant to Matter of Burbano.
Accordingly, we will deny the petition for review.
. In his testimony, Seed referenced this group as “Nafaz-E-Shirat.” (A.R.123) It is apparent, though, that he is speaking of the same TNSM we have been referred to in prior cases concerning political asylees from Pakistan's Swat region. See, e.g., Shah v. Att’y Gen., 293 Fed.Appx. 178, 179 (3d Cir.2008); Khan v. Att’y Gen., 236 Fed.Appx. 846, 849 (3d Cir. 2007).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474234/
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OPINION OF THE COURT
PER CURIAM.
Appellant Mark Felix Wirfel appeals the March 2, 2009, 2009 WL 528306, order of the United States District Court for the Western District of Pennsylvania dismissing his complaint with prejudice. For the following reasons, we will affirm the District Court’s order.
I.
Wirfel has a history with the Court of Common Pleas of Cambria County, Pennsylvania, going at least as far back as a 1997 custody action initiated by Wirfel’s ex-wife concerning their two children, over which Judge Leahey presided. During the custody proceedings, Wirfel began writing letters to Judge Leahey. Based upon these letters, Wirfel was eventually charged with terroristic threats, attempted harassment, and harassment by communications. In December 1998, Wirfel pleaded nolo contendere to the charges and Judge Krumenacker sentenced him. While serving the sentence, Wirfel began writing letters to Judge Krumenacker. Based upon the letters, Wirfel was again charged with terroristic threats. Wirfel pleaded nolo contendere to the charge in March 2003 and Judge Creany sentenced him to a suspended sentence. Because a suspended sentence is not permissible un*736der Pennsylvania law, Wirfel was ultimately released from prison on a writ of habeas corpus. See Wirfel v. Cmwlth. of Pa., 3:05-cv-00025 (W.D.Pa. Aug. 23, 2007).
Wirfel initiated this civil action in the District Court in November 2007, naming Judges Leahey, Krumenaeker, and Creany as defendants (the “judicial defendants”). In his complaint, Wirfel claims that the judicial defendants violated his First Amendment right to free speech by subjecting him to “false arrests(s), conviction^) and obstruction of justice.” Wirfel appended to his complaint a 1998 order issued by Judge Leahey in the state court custody action, which prohibited Wirfel from having contact with his children due to Wirfel’s mental condition. Wirfel claims that Judge Leahey’s order violated Wir-fel’s First Amendment “[rjight to voice opinion of Religion to his own two children.” Wirfel alleges that he responded to Judge Leahey’s order “with letters written of only the truth no matter what,” that the letters did not threaten Judge Leahey’s life, and that Judge Leahey wrongfully had him arrested.
Wirfel’s complaint claims that he suffered physical and emotional injuries, primarily due to the loss of time with his children. He seeks monetary damages.1
The judicial defendants moved to dismiss the complaint on the grounds of absolute judicial immunity. Wirfel opposed the motion and filed several additional motions, largely concerning child support payments. On March 2, 2009, the District Court granted the motion to dismiss, dismissed the complaint with prejudice, and denied Wirfel’s pending motions as moot.
Wirfel filed this timely appeal.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s decision to grant the motion to dismiss on the grounds of absolute judicial immunity. See Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760, 768 (3d Cir.2000).
The Supreme Court long has recognized that judges are immune from suit for monetary damages arising from their judicial acts. See Mireles v. Waco, 502 U.S. 9, 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991); Forrester v. White, 484 U.S. 219, 225-27, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988); Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Judicial immunity applies unless the judge’s actions either were nonjudicial or were taken in the complete absence of jurisdiction. See Gallas, 211 F.3d at 768-69 (citing Mireles, 502 U.S. at 11-12, 112 S.Ct. 286).
The District Court concluded that absolute judicial immunity applies in this case. After closely considering the allegations of the complaint, we agree. Wirfel’s claimed injuries stem directly from court orders entered by Judges Leahey, Krumenaeker, and Creany in their capacities as judges for the Court of Common Pleas of Cambria County, issued while they were presiding over civil and criminal matters involving Wirfel. These orders may not serve as the basis for an award of civil damages. The judicial defendants are entitled to the protection of absolute judicial immunity from Wirfel’s claims, and, as a result, the District Court appropriately dismissed the complaint. See Gallas, 211 F.3d at 770. We also agree with the District Court’s conclusion that amendment of the complaint would be futile. See Grayson v. *737Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002).
In support of his appeal, Wirfel argues that judicial immunity should not apply in this case because “the actions (and orders) of the judge(s) were plainly incompetent and clearly against the law.... ” However, Wirfel’s claim of judicial error is not sufficient to overcome the application of judicial immunity. See Stump, 435 U.S. at 356-57, 98 S.Ct. 1099; see also Gallas, 211 F.3d at 769. Wirfel has not argued that the judicial defendants acted in a nonjudicial capacity or outside of their jurisdiction and, based upon our review of the allegations of the complaint, we discern no basis for such an argument.
III.
Because the judicial defendants are entitled to judicial immunity, we will affirm the order of the District Court.
. Wirfel also seeks to have criminal charges brought against the judicial defendants. However, such relief may not be obtained in a civil action under 42 U.S.C. § 1983.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474236/
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OPINION
PER CURIAM.
Qin Liu, a native and citizen of China, petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying her motion to reopen her immigration proceedings. For the reasons below, we will deny the petition for review.
*738Liu arrived in the United States in June 2001. She appeared before an Immigration Judge (“IJ”) and conceded that she was removable for entering without a valid entry document. See Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I) [8 U.S.C. § 1182(a)(7)(A)(i)(I) ]. Liu applied for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”), alleging that she suffered persecution as a Falun Gong practitioner. The IJ denied relief in July 2003, finding that Liu was not credible. The BIA affirmed without opinion in August 2004.
In February 2008, Liu filed a motion to reopen the proceedings, claiming that she was the mother of two children born in the United States and that she likely would be persecuted under China’s stricter enforcement of its coercive family planning policy. In support of her motion, Liu submitted a notice issued by the Villagers’ Committee in response to her “inquiry on enforcement of the Family Planning Law in our village.” The notice advised Liu that the family planning policy is “strictly enforce^],” that foreign-born children might be treated as Chinese citizens for purposes of the policy, that “those with two children will be targets for sterilization,” and that, despite her residency in the United States, Liu “should strictly abide by the relevant local family planning ordinance” if she returns. In addition, Liu provided an affidavit from her mother dated January 23, 2008, stating that “in the past year, the Family Planning Law was more strictly implemented in our hometown.” Liu’s mother also identified two villagers who were forcibly sterilized on June 4, 2007, because they had more than one child. Information detailing China’s family planning policies was also documented in United States government reports (including State Department Country Reports), local and national Chinese government policy documents and propaganda materials, numerous news articles, Congressional testimony, and NGO reports.
The BIA concluded that the motion to reopen was untimely, see 8 C.F.R § 1003.2(c)(2), and that the evidence Liu submitted in support of her motion did not establish changes in country conditions sufficient to warrant reopening. See 8 C.F.R. § 1003.2(c)(3)(h). Accordingly, the BIA denied the motion to reopen. Liu filed a timely petition for review of the order. The government has moved for summary affirmance, which we will construe as a motion for summary denial of the petition for review.
An alien generally may file only one motion to reopen, and must file the motion with the BIA “no later than 90 days after the date on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2). Liu filed her motion to reopen over three years after the BIA issued the final removal order. The time and number requirements do not apply when the motion to reopen relies on evidence of “changed circumstances arising in the country of nationality ... if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(h). The term “previous hearing” in § 1003.2(c)(3)(h) refers to the proceedings before the IJ. See Filja v. Gonzales, 447 F.3d 241, 252 (3d Cir.2006). We have jurisdiction pursuant to INA § 242 [8 U.S.C. § 1252], and we review the Board’s denial of a motion to reopen for abuse of discretion. See Liu v. Att’y Gen., 555 F.3d 145, 148 (3d Cir.2009). Under this deferential standard of review, we will not disturb the Board’s decision unless it is arbitrary, irrational, or contrary to the law. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004).
*739Liu claims that “the Board failed to recognize that the totality of the evidence demonstrates a relevant change in country conditions in China.” We disagree. In Zheng v. Attorney General, 549 F.3d 260 (3d Cir.2008), we vacated the BIA’s denial of motions to reopen based on changed country conditions in China because the BIA failed to thoroughly discuss the evidence submitted by the petitioners or explain why it was not sufficient. Id. at 268-69, 271. We noted that “ ‘[immigration judges] and the BIA have a duty to explicitly consider any country conditions evidence submitted by an applicant that materially bears on his claim,’ and ‘[a] similar, if not greater, duty arises in the context of motions to reopen based on changed country conditions.’ ” Id. at 268 (quoting Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir. 2006)). As we recognized, ‘“[t]he BIA should demonstrate that it has considered such evidence, even if only to dismiss it. In so doing, the BIA should provide us with more than cursory, summary or con-clusory statements, so that we are able to discern its reasons for declining to afford relief to a petitioner.’ ” Id. at 268 (quoting Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)).
Here, the BIA noted that it had “examined the evidence that was before the Immigration Judge and the proffered evidence submitted with the motion.” The Board specifically commented on the “evidence the respondent submitted of the enforcement of the family planning policies in her hometown” and her “claim of recent sterilizations in her hometown.” The BIA also cited both the 2000 and 2005 State Department Country Reports on Human Rights Practices, noting that “the Chinese government continues to implement comprehensive and often harshly coercive family planning policies” and that “there continue to be documented instances in which local family planning officials have used coercion, including forced sterilization, to meet government goals.” Based on this material, the BIA concluded that “the evidence ... reveals an essentially static situation with regard to the enforcement of the Chinese government’s coercive population control policies, rather than a change in the implementation of the family planning policies in [Liu’s] hometown since the removal hearings.”
We conclude that the Board’s decision was consistent with the standards we set forth in Zheng. The BIA referred to both the background documentation and the evidence specific to Liu’s hometown. Moreover, the Board provided specific reasons why the evidence did not establish a material change in the enforcement of the family planning policy. These reasons are supported by the record. Thus, we cannot say the BIA abused its discretion in denying Liu’s motion to reopen. See Zheng, 549 F.3d at 268
Based on the foregoing, we conclude that the evidence submitted by Liu does not compel the conclusion that she established changed country conditions for individuals returning to China with United States citizen children. Accordingly, we will deny the petition for review.1
. We deny the Government’s motion for summary denial of the petition for review.
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Appellant Eugene Chatman was convicted of trespass on Veterans Administration property, a violation of 18 Pa.C.S. § 3503 and the Assimilative Crimes Act. The District Court imposed no fines or costs, but did restrict Appellant’s presence on Veterans Administration grounds. The District Court’s restrictions permitted Chatman to enter Veterans Administration property solely for medical purposes and required him to have a police escort while on the grounds of Veterans Administration facilities. Chatman filed a motion to dismiss these restrictions alleging violations of his rights as a patient of the Veterans *741Administration and violations of his civil rights in general. The District Court refused to lift its restrictions and Chatman has filed an appeal, pro se. We will affirm.
Liberally construing his pro se brief, Chatman first argues that the restrictions imposed by the District Court constitute harassment and a denial of medical treatment. This argument is unsupported by the record. Furthermore, the District Court’s restrictions do not prevent Chatman from receiving medical treatment in any manner. This argument has no merit. Chatman also argues that the District Court’s restrictions violate his privacy rights under Article 12 of the Universal Declaration of Human Rights as adopted by the United Nations in 1948. This argument lacks merit because the Universal Declaration of Human Rights is a nonbinding declaration that provides no private rights of action. Sosa v. Alvarez-Machain, 542 U.S. 692, 734, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (explaining that Universal Declaration is simply a statement of principles and not a treaty or international agreement that would impose legal obligations.).
Next, Chatman quotes the Fourth Amendment to the Constitution, but makes no supporting argument to overcome his conviction and/or sentence. Although pro se briefs are afforded liberal construction, arguments must be briefed in order to be preserved. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Put another way, Chatman’s failure to identify an error is the same as if he had not appealed the judgment. See e.g. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Finally, Chatman makes a request for “punitive damages” because of alleged false imprisonment by the Veterans Administration authorities. We agree with the Government that this request for civil relief exceeds the bounds of a criminal appeal. We further find this request mer-itless and frivolous.
We will affirm the order of the District Court.
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Arthur Ishkhanian appeals the judgment of the United States District Court for the Eastern District of Pennsylvania imposing a sentence of 360 months imprisonment following his conviction for various methamphetamine-trafficking crimes. Ishkhanian pled guilty in accordance with a written plea agreement that contained a waiver of his appellate rights. He contends that the waiver is invalid and that we should consider his appeal because the District Court deferred to the prosecutor’s explanation of the waiver provision and did not independently ensure that he understood its scope and effect. For the reasons that follow, we will affirm.
I. Factual Background
On August 1, 2007, a grand jury returned a 107-count superceding indictment against Ishkhanian and fourteen co-defendants for, among other things, conspiracy to distribute methamphetamine, as well as offenses related to the possession and distribution of methamphetamine. Four months later, on November 30, 2007, Ish-khanian pled guilty to one count of distribution and two counts of possession with the intent to distribute in violation of 21 U.S.C. § 841. He also pled guilty to one count of conspiracy in violation of 21 U.S.C. § 846. The remaining counts were dismissed at sentencing.
Ishkhanian’s plea agreement contains a waiver of appellate rights that states, in pertinent part:
[T]he defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant’s conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law. This waiver is not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived.
... [Notwithstanding the waiver provision set forth in this paragraph, the defendant may file a direct appeal but may raise only claims that:
(1) the defendant’s sentence on any count of conviction exceeds the statutory maximum for that count ...;
*743(2) the sentencing judge erroneously departed upward pursuant to the Sentencing Guidelines;
(3) the sentencing judge, exercising the Court’s discretion pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), imposed an unreasonable sentence above the final Sentencing Guidelines ranges determined by the Court.
(App. at 23a.)
During the change-of-plea hearing, the District Court requested that the government summarize the provisions of the plea agreement. The prosecutor described the waiver in the agreement as follows:
Defendant has also agreed to waive all right to appeal or collaterally attack his conviction, sentence or any other matters relating to this prosecution, whether the right to appeal or collateral attack arises under 18 U.S.C. Section 3742, 28 U.S.C. Section 1291, 28 U.S.C. Section 2255, or any other provision of law.
(Id. at 34a.) The prosecutor also noted that the waiver did not bar Ishkhanian from asserting non-waivable constitutional claims. (Id.) The Court then conducted the following colloquy with Ishkhanian, defense counsel, and the prosecutor:
THE COURT: Mr. Labrum, you did go over his waiver of appeal rights?
PROSECUTOR: Yes, your Honor—
THE COURT: You mentioned—
PROSECUTOR: — it is set forth in Paragraph 9 of the guilty plea agreement.
THE COURT: Okay, all right. I think you did and I, therefore will not go over them again. Anything that I have overlooked?
DEFENSE COUNSEL: I don’t believe so, your Honor.
PROSECUTOR: No, your Honor.
THE COURT: Do you have any questions of the Court as to what you’re doing today?
THE DEFENDANT: No, sir.
(Id. at 39a.)
The Court ordered that a presentence investigation report be prepared, and a sentencing hearing was held approximately two years later, on January 16, 2009.1 At sentencing, the Court found that Ishkhani-an’s offense level under the United States Sentencing Guidelines was 40, his criminal history category was IV, and his Guidelines range was 360 months to life. Ish-khanian sought a variance below the Guidelines range because he had cooperated with government investigators2 and has two young children. On appeal, he also argues that a below-Guidelines sentence was necessary to avoid disparity between his sentence and those of his co-defendants. The Court rejected his request for a variance and sentenced him to a 360-month term of imprisonment on each count *744to which he pled guilty, all to run concurrently. This timely appeal followed.
II. Discussion3
Ishkhanian argues that the District Court’s sentence of 360 months was unreasonable and therefore runs afoul of 18 U.S.C. § 3553(a). This challenge plainly falls within the scope of the appellate waiver in his plea agreement. We must begin by evaluating whether that waiver forecloses his appellate attack on his sentence.
Waivers of appellate rights serve valuable functions in the criminal justice process. United States v. Khattak, 273 F.3d 557, 561-62 (3d Cir.2001). They provide a basis for plea bargaining between the government and criminal defendants, who often agree to a waiver in exchange for favorable sentences. Id. Prosecutors rely upon waivers to bring finality to the criminal process and to conserve prosecutorial resources. Id. We have upheld the validity of appellate waivers, though we have stated that they “should be strictly construed.” Id. at 562. We will give effect to a waiver only if “(1) ... the issues [the defendant] pursues on appeal fall within the scope of his appellate waiver and (2) ... he knowingly and voluntarily agreed to the appellate waiver, unless (3) enforcing the waiver would work a miscarriage of justice.” United States v. Corso, 549 F.3d 921, 927 (3d Cir.2008).
In the present matter, Ishkhanian argues that enforcement of the waiver in his plea agreement would result in a miscarriage of justice because the District Court allegedly failed to comply with Rule 11(b)(1)(N) of the Federal Rules of Criminal Procedure. Rule 11(b)(1)(N) imposes a duty upon a district court during a change-of-plea hearing to “address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Ishkhanian argues that the District Court in his case violated Rule 11(b)(1) when it permitted the prosecutor to summarize the terms of the appellate waiver and later asked him “whether [he] ha[d] any questions of the Court as to what [he was] doing today.” (App. at 39a.) Ishkhanian contends that the Court should have conducted a separate discussion regarding the terms of the appellate waiver and independently confirmed that he understood the effect of the waiver before accepting his plea. Ishkhanian did not at any time raise the alleged Rule 11 error before the District Court.
A defendant who raises a Rule 11 violation for the first time on appeal as a means of invalidating an appellate waiver must establish that the alleged infraction constitutes plain error. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (holding that a defendant who does not call a Rule 11 violation to the attention of the district court must “satisfy the plain-error rule”); Corso, 549 F.3d at 928 (requiring a defendant to show plain error before relying upon a Rule 11 violation to set aside a waiver of appellate rights). The defendant must show that the district court deviated from an established legal rule, that the error was clear or obvious, that the error affected the defendant’s substantial rights, and that a miscarriage of justice would result unless the error is righted. Corso, 549 F.3d at 928-29; United States v. Goodson, 544 *745F.3d 529, 539 (3d Cir.2008). Correction of plain error rests within the discretion of the reviewing court, and the last element of the analysis requires the defendant to persuade us that the error seriously impairs the “fairness, integrity, or public reputation of judicial proceedings.” Vonn, 535 U.S. at 63, 122 S.Ct. 1043 (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).
Ishkhanian has established the first two elements of the plain error analysis. Rule 11(b)(1)(N) requires a district court to “address the defendant personally!),] • • • inform the defendant of’ an appellate waiver, and “determine that the defendant understands” it. “[N]othing in the plain language of Rule 11(b)(1) permits a district court to delegate its responsibilities to ‘inform’ and ‘determine’ to the government; the Rule provides that ‘the court must’ do both of those things.”4 Corso, 549 F.3d at 929. The government concedes that the District Court’s reliance upon the prosecutor to describe the appellate waiver here was inappropriate under Rule 11. Accordingly, we conclude that Ishkhanian has satisfied the first two elements of the plain error test.
The third element of the test requires Ishkhanian to show that the error affected his substantial rights. Id. A deviation from our Rule 11(b)(1) precedents affects the substantial rights of a defendant seeking to appeal his sentence if there is a reasonable probability that the aberration “precluded him from understanding that he had a right to appeal and that he had substantially agreed to give up that right.” Id. (citing Goodson, 544 F.3d at 541). The reasonable probability burden is less onerous than the preponderance of the evidence standard, and it imposes upon the defendant the burden of producing evidence that calls into question the outcome of the proceedings. See, e.g., Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (defining reasonable probability standard in the context of violations of United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)); United States v. Dominguez Beni-*746tez, 542 U.S. 74, 83 & n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (stating that the reasonable probability standard articulated in Kyles provides the appropriate standard of review for violations of Rule 11); Corso, 549 F.3d at 930 (applying the reasonable probability standard to determine whether a district court’s failure to comply with Rule 11(b)(1)(N) rendered a defendant’s waiver of appellate rights invalid).
In the present ease, Ishkhanian has not shown a reasonable probability that the District Court’s Rule 11 error prevented him from understanding the effect and breadth of his appellate waiver. Ishkhani-an has a tenth grade education and is fluent in the English language. He reviewed the entire plea agreement with his counsel prior to the guilty plea hearing, and he executed an attached acknowledgment of rights, which indicated that the agreement contained an appellate waiver. He informed the Court at the outset of the change-of-plea hearing that he understood the contents of his plea agreement. During the hearing, the prosecutor explained the waiver, which covered all rights on direct appeal and collateral attack regardless of the statutory source from which they arose. Later in the same hearing, the Court mentioned the waiver a second time, asking whether the prosecutor had covered Ishkhanian’s appellate rights. The prosecutor responded in the affirmative. The Court then asked both counsel whether the Court had overlooked any essential terms of the agreement, and both responded that they were prepared for imposition of a sentence. Lastly, the Court asked Ishkhanian whether he “ha[d] any questions of the Court as to what [he was] doing today?” (App. at 39a.) Ish-khanian responded: “No, sir.” (Id.) He did not request clarification about the waiver or any other provision of the plea agreement.
In total, Ishkhanian was informed of the waiver on at least four separate occasions: once when reviewing the plea agreement with counsel, once when executing the acknowledgment attached thereto, and twice during his change-of-plea hearing. Under these circumstances, we cannot conclude that the District Court’s technically inadequate Rule 11 colloquy impaired Ishkhani-an’s ability to understand the effect and scope of the waiver. See Goodson, 544 F.3d at 541 (finding that the district court’s failure to speak with defendant about an appellate waiver did not affect his substantial rights because the prosecutor explained the waiver during the change-of-plea hearing and the court confirmed that defendant understood the prosecutor’s explanation). The District Court’s Rule 11 misstep did not affect Ishkhanian’s substantial rights, and his plain error argument fails as a result.
Assuming for the sake of argument, however, that the District Court’s error did affect Ishkhanian’s substantial rights, we would nonetheless affirm the judgment because Ishkhanian has failed to demonstrate that enforcement of the waiver would work a miscarriage of justice. A miscarriage of justice typically involves “unusual circumstance[s],” Khattak, 273 F.3d at 562, and arises from “egregious errors” of the district court, Corso, 549 F.3d at 931 (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). We evaluate an alleged miscarriage of justice by looking to *747Khattak, 273 F.3d at 562 (quoting United States v. Teeter, 257 F.3d 14, 26 (1st Cir. 2001)). In this case, the Court’s failure to question Ishkhanian about the waiver was a relatively minor error. The prosecutor discussed the plea agreement’s salient provisions, and the record indicates that the waiver’s effect and scope were readily ascertainable to Ishkhanian through review of the agreement, discussions with counsel, and the colloquy with the Court. Under the circumstances of this case, Ishkhani-an’s waiver does not amount to a miscarriage of justice.
*746[t]he clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result.
*747III. Conclusion
Ishkhanian has failed to show that the District Court’s oversight of one aspect of the requirements of Rule 11 affected his substantial rights or that enforcing the waiver in his plea agreement would result in a miscarriage of justice. The shortcomings he ascribes to the District Court do not constitute plain error, and he may not invoke them for the first time on appeal to invalidate the waiver of his appellate rights. We will enforce that waiver and decline to consider his challenge to the reasonableness of his sentence. Accordingly, we will affirm the judgment of the District Court.
. The delay between the change-of-plea hearing and the sentencing hearing resulted from an unsuccessful attempt by Ishkhanian to flee from law enforcement authorities. The District Court initially granted him pre-sentenc-ing release under the Bail Reform Act of 1984 but later revoked his bail and instructed him to self-surrender on February 4, 2008. He failed to report and was apprehended approximately four months later in Pensacola, Florida, after producing a false identification card and falsely identifying himself to United States Marshals.
. The plea agreement recognized that Ishkha-nian had assisted the government with its investigation of his co-conspirators and stated that the government could, in its discretion, request a downward departure under § 5K1.1 of the Sentencing Guidelines or a downward variance under 18 U.S.C. § 3553(e) and Rule 35 of the Federal Rules of Criminal Procedure. The government declined to move for a below-Guidelines sentence in light of Ishkha-nian’s flight from justice. See supra note 1.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir.2007) (holding that defendant’s waiver of appellate rights does not divest court of appeals of jurisdiction to hear an appeal).
. Our Rule 11 precedents impose a staunch obligation upon the district court to conduct a personal discussion with defendant about each item enumerated in the rule. In United States v. Goodson, the district court requested that the prosecutor summarize an appellate waiver in the defendant's plea agreement. 544 F.3d at 532. The court asked the defendant whether he understood the waiver following the prosecutor's explanation and again before the defendant entered a guilty plea. Id. We held that the court's inquiry fell short of the requirements of Rule 11:
[T]he District Court relied upon the prosecutor's recitation of the terms of the appellate waiver to fulfill its obligation to inform the defendant of the specifics of the waiver provision. This was error. Although the Court did ask [the defendant] personally whether he understood that he had given up substantial appellate rights, we cannot ignore that there was no effort to verify that [the defendant] understood the breadth of the waiver-or to underscore the fact that the waiver meant that, subject to three very narrow exceptions, [the defendant] was giving up the right to appeal both the validity of his plea and the legality of his sentence. This too was error.
Id. at 540. We do not understand Goodson and Corso to restrict individuals other than the district judge from discussing a defendant's appellate waiver during a change-of-plea colloquy. Input from the prosecutor and defense counsel may aid the defendant’s understanding of his or her plea agreement, and it is entirely legitimate for a district court to involve others in the process of accepting a guilty plea. However, participation by counsel does not excuse the district court from independently ensuring that the defendant understands the scope and effect of the waiver. The court need not repeat every matter that counsel has covered in detail, but a careful judge will personally engage the defendant in questioning of sufficient detail — beyond a single "do you understand” inquiry — to ensure that the defendant truly does understand the nature, scope, and effect of the rights being waived.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474242/
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Appellant Jeanne S. Di Loreto appeals from a February 19, 2009 order of the United States District Court for the Eastern District of Pennsylvania dismissing her complaints in two civil actions. She also appeals from an August 29, 2008 order of the District Court refusing to remand her cases to the Court of Common Pleas. For the following reasons, we will affirm.
I. Background
Mrs. Di Loreto and her husband controlled Ardra Insurance Company Ltd. (“Ardra”), which purportedly provided reinsurance coverage for another company called Nassau Insurance Company (“Nassau”). Nassau was at one time presided over by Mr. Di Loreto as President, but it went into liquidation under the authority of the Insurance Department of the State of New York (“NYSID”). Shortly thereafter, in 1985, the NYSID Superintendent, in his capacity as Nassau’s Liquidator, sued Ardra in New York state court for reinsurance moneys owed to Nassau. In the same suit, he sought recovery from the Di Loretos in their individual capacities, on the theory that Ardra was their alter ego. William Costigan was the attorney representing the Liquidator throughout those proceedings. The Di Loretos were represented by attorneys from the Philadelphia office of the law firm Pepper Hamilton, LLP.
The Liquidator finally prevailed at trial in April of 2002, obtaining a judgment for approximately $20 million (the “New York judgment”), and he also prevailed on appeal.1 Serio v. Ardra Ins. Co., 100 N.Y.2d *749516, 769 N.Y.S.2d 202, 801 N.E.2d 423 (N.Y.2003) (denying leave to appeal); Serio v. Ardra Ins. Co., 100 N.Y.2d 576, 764 N.Y.S.2d 385, 796 N.E.2d 477 (N.Y.2003) (dismissing appeal). He then filed the New York judgment in Chester County, Pennsylvania, as a lien against property that the Di Loretos owned there, though he did not then seek to execute on the lien.
In 2005, Mrs. Di Loreto, unhappy with the outcome of the New York litigation, sued Pepper Hamilton. She filed the malpractice action in the Court of Common Pleas of Philadelphia County, and her lawyer in that case discussed with the Liquidator the possibility of satisfying the New York judgment out of the proceeds of the recovery Mrs. Di Loreto hoped to obtain from Pepper Hamilton. Some time after that, the Liquidator sought to execute on the Chester County lien through a sheriffs sale, and also attempted to garnish any proceeds from Mrs. Di Loreto’s malpractice suit.
Mrs. Di Loreto succeeded in having the sheriffs sale stayed pending the resolution of the malpractice suit. However, when the suit settled, progress towards a final resolution of the Liquidator’s claims against Ardra and the Di Loretos hit another delay when Pepper Hamilton refused to disburse the settlement moneys because of the garnishment. There were further moves and countermoves in the Liquidator’s effort to collect against Mrs. Di Loreto, which culminated in the filing by Mrs. Di Loreto of two essentially identical lawsuits in Pennsylvania, one in the Court of Common Pleas for Philadelphia County (the “Philadelphia lawsuit”) and one in the Court of Common Pleas of Chester County (the “Chester County lawsuit”), naming as defendants the appellees in the present appeal, who are certain employees of the NYSID (“NYSID employees”) and Costi-gan. The Chester County lawsuit included the NYSID itself as a defendant, and the NYSID is also an appellee in the present matter.
Mrs. Di Loreto’s substantively identical complaints sought to prevent execution on the New York judgment because, she said, it “was obtained in violation of [her] due process rights.” (App. at 2a-3a, 345a.) She also sought compensatory and punitive damages. The complaints assert the following claims: (1) a claim pursuant to 42 U.S.C. § 1983 for violation of Mrs. Di Lor-eto’s due process rights, based on Appel-lees’ procurement of the allegedly defective New York judgment; (2) a § 1983 claim for violation of Mrs. Di Loreto’s equal protection rights; (3) a claim for abuse of process, based on, among other things, the filing of the garnishment suit for the alleged purpose of harassing Mrs. Di Loreto and pressuring her into settlement; (4) a claim for intentional infliction of emotional distress; and (5) a claim for declaratory judgment that the New York judgment is invalid.
On January 25, 2008, Mrs. Di Loreto initiated the Chester County lawsuit by filing a summons and a complaint. Two of the NYSID employees and the NYSID itself were served on January 29, 2008, and the remaining NYSID employee was served on February 11, 2008. Those defendants had also been served with the Philadelphia lawsuit as of the same dates. Di Loreto attempted to serve Costigan in the Chester County lawsuit by serving an attorney who had entered an appearance on his behalf in the Philadelphia lawsuit, but the attorney refused to accept service for Costigan.
On February 26, 2008, Costigan emailed counsel for Mrs. Di Loreto stating:
*750I refer to the Philadelphia and Chester County actions you have commenced on behalf of Jeanne S. DiLoreto against me and other defendants. I understand you have asked [my attorney] to accept service on my behalf. Be advised that I will be appearing pro se in the cases and that I acknowledge service of both complaints effective today. I[sic] you require something more formal, just send it to me.
(App. at 930a.) That same day, the NY-SID employees removed both cases to federal court pursuant to 28 U.S.C. § 1441. Although both notices of removal asserted that all defendants had consented to removal, neither notice included proof of Costigan’s consent, and the Chester County notice did not include proof of the NY-SID’s consent.
On March 7, 2008, Mrs. Di Loreto’s counsel sent Costigan a letter enclosing an acceptance of service form for Costigan to complete “as a more formal record that [he had] officially been served.” (App. at 931a.) On March 27, 2008 Di Loreto filed motions to remand both cases to the state courts. Four days later, on March 31, 2008, Costigan signed the acceptance of service form and returned it to counsel. He also filed a “consent to removal” in the Philadelphia lawsuit and a notice of removal in the Chester County lawsuit which included as an exhibit the NYSID and NYSID employees’ consent to removal.
After much argument from the parties, the District Court denied the motions to remand. With respect to the Chester County lawsuit, the District Court concluded that Costigan did not waive service until he signed the acceptance of service form. The Court further decided that the matter had been properly removed because Costigan was the last defendant served and his notice of removal was timely, as measured from the time he was served. As to the Philadelphia lawsuit, the District Court concluded that the NYSID employees properly removed the case because Costigan had not been served with the complaint at the time the NYSID employees petitioned for removal, rendering his consent unnecessary.
While the motions to remand were outstanding, the NYSID employees and Costi-gan filed separate motions to dismiss the Philadelphia and Chester County lawsuits. The NYSID also moved to dismiss the Chester County lawsuit. The District Court ultimately dismissed both actions, concluding that it lacked personal jurisdiction over the NYSID and the Liquidator to the extent he was sued in his official capacity, that it lacked personal jurisdiction over Costigan, that the New York judgment was entitled to full faith and credit, which precluded Mrs. Di Loreto’s due process claim, and that Mrs. Di Loreto failed to state a claim on all remaining counts.2 Mrs. Di Loreto timely appealed.
II. Discussion3
On appeal, Mrs. Di Loreto challenges the District Court’s refusal to remand the Chester County lawsuit to the Court of Common Pleas.4 She further asserts that *751the District Court’s conclusions that it lacked personal jurisdiction over the NY-SID and Costigan were erroneous. Finally, she contends that the District court erred in extending full faith and credit to the New York judgment, thereby disposing of her due process claim.5 We agree with the District Court that Costigaris notice of removal was timely filed and that the removal of the Chester County lawsuit was therefore appropriate. We further conclude that Mrs. Di Loreto’s due process claim was properly dismissed because the New York judgment is entitled to full faith and credit.6
A. The Chester County Lawsuit was Properly Removed
We exercise plenary review over a district court’s determination that removal was proper. Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 219 (3d Cir.2005). A notice of removal in a civil action must be filed “within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based....” 28 U.S.C. § 1446(b). In Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., the Supreme Court interpreted this provision to mean that “a named defendant’s time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, ‘through service or otherwise,’ after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service.” 526 U.S. 344, 347-48, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999). Thus, the removal period for a defendant does not begin to run until that defendant is properly served or until that defendant waives service. See id. at 350, 119 S.Ct. 1322 (“In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a *752party the complaint names as a defendant.”)
When there is more than one defendant, the “rule of unanimity” requires that all defendants consent to the removal. Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir.1985). Moreover, it has been accepted that “the last-served defendant may remove within thirty (30) days of service, and other defendants may consent to the later-served Defendant’s removal even if their own removal periods have expired.” Cmiech v. Electrolux Home Prods., Inc., 520 F.Supp.2d 671, 676 (M.D.Pa.2007).7 The parties do not challenge the application of this “last-served defendant” rule by the District Court.
Since Costigan was never officially served in accordance with the Pennsylvania Rules of Civil Procedure, we must determine when he waived service so as to trigger his removal period. See Fleehr v. Mummert, 857 A.2d 683, 685 (Pa.Super.Ct.2004) (“[Effective service of process may be obtained through waiver or consent.”). Di Loreto asserts that Costi-gan’s February 26, 2008 email constituted a waiver of service, rendering untimely his removal of the matter more than thirty days later. Appellees assert that the District Court correctly concluded that waiver of service did not occur until March 31, 2008, when Costigan signed and returned the acceptance of service form sent to him by counsel for Mrs. Di Loreto.
Pennsylvania Rule of Civil Procedure 402(b) allows a defendant or his agent to waive service of process by completing an acceptance of service form. A defendant may also waive process if he “manifests an intent to submit to the court’s jurisdiction • • • [by] tak[ing] ‘some action (beyond merely entering a written appearance) going to the merits of the case, which evidences an intent to forego objection to the defective service.’ ” Fleehr, 857 A.2d at 685 (quoting Cathcart v. Keene Indus. Insulation, 324 Pa.Super. 123, 471 A.2d 493, 499 (1984)). For example, in Fleehr v. Mummert, the Pennsylvania Superior Court concluded that defense counsel’s appearance in court on a motion to consolidate the plaintiffs case with a related arbitration evidenced the defendant’s intent to waive formal process and submit to the court’s jurisdiction. 857 A.2d at 685 (“Counsel’s actions were taken on Appellant’s behalf and must be seen as a recognition of the ... complaint, for absent such there was nothing to consolidate.”).
*753By contrast, in Cmiech v. Electrolux Home Products, Inc., counsel for plaintiff sent an acceptance of service form to defense counsel, but never followed up on the matter. 520 F.Supp.2d at 673, 676. Thereafter, defense counsel engaged in discussions with plaintiffs counsel regarding extensions of time and, according to the plaintiff, represented that they had authority to accept service for the defendant in question. Id. at 673. The District Court concluded that, despite counsels’ discussions, service was not waived until defense counsel completed the acceptance of service form. See id. at 676. Since counsels’ behavior was directed at plaintiffs counsel, and not at the court itself as in Fleehr, it was insufficient to waive service. 520 F.Supp.2d at 675.
Although Costigan’s email message of February 26, 2008 can be read as evincing an intent to forego an objection to formal service, we cannot say that the District Court erred in concluding that the email was insufficient to constitute a waiver of service. Costigan’s informal email does not mention anything regarding the merits of the Philadelphia lawsuit or Chester County lawsuit. In addition, as in Cmiech, Costigan was not interacting with the court so as to permit an inference that he was submitting to the court’s jurisdiction without challenge. Accordingly, the first clear indication that Costigan would forego any challenge to the defective service was when he signed the acceptance of service form on March 31, 2008. Since he removed the Chester County lawsuit to federal court that same day, with proof of the other defendants’ consent, removal was proper under the last-served defendant rule.
B. The New York Judgment is Enforceable
On appeal, Mrs. Di Loreto challenges the dismissal of her due process claim, asserting that, when the District Court concluded that the New York judgment is entitled to full faith and credit, it “fail[ed] to examine the circumstances surrounding the New York Judgment and fail[ed] to give Mrs. Di Loreto all reasonable inferences in her favor.” (Appellant’s Op. Br. at 36.) A court confronted with a Rule 12(b)(6) motion must accept the truth of all factual allegations in the complaint and must draw all reasonable inferences in favor of the non-movant. Gross v. German Found. Indus. Initiative, 549 F.3d 605, 610 (3d Cir.2008). In determining whether dismissal is appropriate, the court may consider exhibits attached to the complaint and matters of public record. Pension Ben. Guaranty Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1197 (3d Cir. 1993). “We exercise plenary review over a district court’s decision to grant a motion to dismiss.... ” DeHart v. Horn, 390 F.3d 262 (3d Cir.2004).
The key question is whether there is any flaw in the New York judgment that gives rise to a due process claim, for, in the absence of such a flaw, we “must give the same preclusive effect to a state court judgment as another court of that state would.... ” Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 141 (3d Cir.1999); see also 28 U.S.C. § 1738; Kremer v. Chem. Const. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) (“Section 1738 requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.”). “Due process requires that a party have a full and fair opportunity to litigate their case.” Peduto v. City of N. Wildwood, 878 F.2d 725, 728 (3d Cir.1989) (citing Kremer, 456 U.S. at 480-81, 102 S.Ct. 1883). Although the requirements of due process are context-specific, due process is generally comprised of:
*754(1) notice of the basis of the governmental action; (2) a neutral arbiter; (3) an opportunity to make an oral presentation; (4) a means of presenting evidence; (5) an opportunity to cross-examine witnesses or to respond to written evidence; (6) the right to be represented by counsel; and (7) a decision based on the record with a statement of reasons for the result.
Rogin v. Bensalem Twp., 616 F.2d 680, 694 (3d Cir.1980).
Mrs. Di Loreto does not complain that New York state court procedures, or a lack thereof, failed to provide her the protections safeguarded by the Due Process clause of the United States Constitution. She instead argues that the New York judgment was rendered without due process because “the Liquidator brought a lawsuit against [her] with virtually no evidence,” and because “the case was decided by an unconstitutionally defective jury, ... defended by a negligent attorney who was representing both Di Loretos, and ... was pursued by a manipulative prosecutor.” (Appellant’s Op. Br. at 38.) According to Mrs. Di Loreto, the District Court’s failure to account for these factors rendered erroneous its conclusion that the judgment was enforceable.
Despite those protestations, we find no error in the District Court’s analysis. Mrs. Di Loreto had a full and fair opportunity to defend against the Liquidator’s claims. Her complaints and the attached exhibits conclusively establish that she was represented by counsel, had an opportunity to conduct discovery and present evidence and argument at trial, received a trial before a neutral judge and jury, and had the opportunity to challenge the jury’s verdict on appeal with the assistance of counsel. Moreover, on appeal to the Appellate Division of the New York Supreme Court, Mrs. Di Loreto argued for reversal of the judgment on grounds that there was insufficient evidence against her and that only six of eight jurors had rendered the verdict — the very arguments she advances in this case. The Appellate Division reviewed the record and considered those arguments, concluding that sufficient evidence supported the judgment and that Mrs. Di Loreto had waived any objection to the manner in which the verdict was rendered. In short, the New York proceedings bear all of the hallmarks of due process. That Mrs. Di Loreto lost her case does not mean her constitutional rights were violated.8
Her assertions to the contrary notwithstanding, it is clear that Mrs. Di Loreto seeks to use the present proceedings as a vehicle for rearguing claims that have been extensively litigated in New York and fairly passed upon by the courts of that state. As is evident from the voluminous attachments to her complaints in the Philadel*755phia lawsuit and the Chester County lawsuit, including deposition testimony and trial transcripts from the New York litigation, Mrs. Di Loreto is inviting us to function as a state appellate court and overturn the New York judgment. That, however, is something we cannot do. Cf. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) (complaints that “invite[] federal courts of first instance to review and reverse unfavorable state-court judgments” are “out of bounds”).
Mrs. Di Loreto has had over two decades of legal process that more than comports with the dictates of our Constitution. The New York judgment is enforceable,9 which requires us to affirm the District Court’s dismissal of the removed cases. We therefore need not address the remaining arguments on appeal.
III. Conclusion
Costigan’s notice of removal was timely filed and the Chester County lawsuit was therefore properly removed pursuant to the last-served defendant rule. The New York judgment was not procured in violation of Mrs. Di Loreto’s due process rights and it is therefore entitled to full faith and credit. Accordingly, we will affirm the judgment of the District Court.
. At trial, the jury deadlocked on the issue of Mrs. Di Loreto’s liability. The trial judge determined that once six of the eight deliberating jurors reached agreement, their decision would constitute the jury’s verdict on the claims against Mrs. Di Loreto. On appeal, Mrs. Di Loreto asserted that the verdict was rendered by a constitutionally defective jury because the New York constitution requires agreement of at least five-sixths of the jurors deliberating to render a civil verdict and six out of eight jurors equals less than five-sixths. N.Y. Const. Art. 1, § 2 (“The legislature may provide ... that a verdict may be rendered by not less than five-sixths of the jury in any civil case.’’); NY. C.P.L.R. 4113 (“A verdict may be rendered by not less than five-sixths of the jurors constituting a jury."). The Appellate Division of the New York Supreme Court concluded that the argument was waived saying "[t]he record discloses that the [Di Lore-tos] consented to a verdict rendered by six of eight jurors.” (App. at 281a.) The Appellate Division also affirmed the judgment, concluding that “the proof showed that the DiLore-*749tos, through their control of Ardra, deprived it of the funds needed to meet its reinsurance obligations.” (App. at 281a.)
. Although it did not explicitly say so, the District Court's conclusion that the New York judgment is valid clearly disposed of Mrs. Di Loreto's request for declaratory judgment in addition to her due process claim.
. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1332. Jurisdiction also depended upon the validity of removal, which is discussed herein. Our jurisdiction is based on 28 U.S.C. § 1291.
.In her opening brief, Mrs. Di Loreto asserts that the District Court’s refusal to remand was erroneous, however, she only discusses the Court’s analysis with respect to the Chester County lawsuit. Accordingly, she has waived any arguments as to the Philadelphia lawsuit, despite her attempts to revive them in *751her reply brief. See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a party raises it in its opening brief, and for those purposes a passing reference to an issue ... will not suffice to bring that issue before this court.”) (internal quotations omitted).
. Mrs. Di Loreto does not appeal the District Court’s dismissal of her equal protection claim, which asserted that Costigan pursued the Liquidator’s claim against Mrs. Di Loreto “based on her status as a woman,” nor does she appeal the dismissal of her intentional infliction of emotional distress claim. (App. at 24a-25a, 368a.) In addition, although she vaguely references her abuse of process claim in her discussion of the District Court’s analysis of its personal jurisdiction over Costigan, she does not confront the Court's dismissal of that claim. Thus, she has also waived that issue on appeal.
. “[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction)." Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). In this case, two of the five defendants — the NYSID and Costigan — asserted lack of personal jurisdiction as a defense to Mrs. Di Loreto’s lawsuits. Since we have jurisdiction over the remaining three defendants, we can dispose of these matters without addressing personal jurisdiction as to the other two, as we would have to address the merits of Mrs. Di Loreto’s claims regardless of our jurisdiction over the NYSID and Costigan. See Philbrook v. Glodgett, 421 U.S. 707, 721-22, 95 S.Ct. 1893, 44 L.Ed.2d 525 (1975) (declining to address jurisdictional issue because "the substantive issue decided by the District Court would have been decided by that court even if it had concluded that the Secretary was not properly a party to the suit, since appellant Philbrook was clearly a proper party ... and the statutory issues raised by appellees' claim against Philbrook were indistinguishable from those raised by their claim against the Secretary."), superseded by statute on other grounds, Unemployment Compensation Amendments of 1976, Pub.L. 94-566, 90 Stat. 2667.
. Although the law is not entirely settled, recent authority supports the last-served defendant rule. See, e.g., Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1205 (11th Cir. 2008) (noting, in adopting the rule, that “the trend in recent case law favors the last-served defendant rule”); Marano Enters. of Ks. v. Z-Teca Restaurants, L.P., 254 F.3d 753, 757 (8th Cir.2001) ("We hold that the later-served defendants in this case had thirty days from the date of service on them to file a notice of removal with the unanimous consent of their co-defendants, even though the first-served co-defendants did not file a notice of removal within thirty days of service on them.”); Briefly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th Cir. 1999) ("[W]e hold that a later-served defendant has 30 days from the date of seivice to remove a case to federal district court, with the consent of the remaining defendants.”) (footnote omitted); Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure § 3731 (4th ed. 2009) ("Other courts of appeals, as well as many district courts, also now have rejected the first served defendant rule in construing Section 1446(b)”) (footnotes omitted). In addition to Cmiech, other decisions from courts in our circuit have followed this approach. See Shadie v. Aventis Pasteur, Inc., 254 F.Supp.2d 509, 515 (M.D.Pa.2003) (adopting last-served defendant rule); Orlick v. J.D. Carton & Son, Inc., 144 F.Supp.2d 337, 343 (D.NJ.2001) (same). The parties in this case accept that the rule is applicable and, while we will leave a definitive decision on the issue for another day, for purposes of this case at least, we agree.
. Furthermore, whether Mrs. Di Loreto's attorneys were negligent in representing her in the New York action — a matter as to which we neither state nor imply any conclusion at all — has no bearing on the validity of the judgment against her. There is no right to effective assistance of counsel in a civil case, as there is in a criminal case. See Kushner v. Winterthur Swiss Ins. Co., 620 F.2d 404, 408 (3d Cir.1980) (“An aggrieved party in a civil case, involving only private litigants unlike a defendant in a criminal case, does not have a constitutional right to the effective assistance of counsel. The remedy in a civil case, in which chosen counsel is negligent, is an action for malpractice.”) (internal quotations omitted). Mrs. Di Loreto had and took the opportunity to sue her attorneys for legal malpractice. Her settlement of that claim compensates her to the extent that any malpractice might have tainted the New York proceedings. Also irrelevant is the fact that the Liquidator vigorously pursued his case against Mrs. Di Loreto. The Liquidator was entitled to prosecute a legitimate claim to the extent provided by the law and subject to the rulings of the trial judge.
. Even if Mrs. Di Loreto had preserved her abuse of process claim on appeal, our conclusion that the New York judgment is valid would also dispose of that claim, since use of process for a legitimate reason — to secure collection on a valid judgment — does not constitute abuse of process. See Rosen v. Am. Bank of Rolla, 426 Pa.Super. 376, 627 A.2d 190, 193-94 (1993) (bank's subpoena of plaintiff during discovery in aid of execution on a valid judgment did not constitute abuse of process, regardless of whether subpoena was properly served, because plaintiff had information relevant to bank’s attempt to execute).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474244/
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Appellants J.H., a minor child, and his parents appeal from an order of the United States District Court for the Eastern District of Pennsylvania granting the Souderton Area School District (the “School District”) summary judgment on the administrative record, after finding that the School District had provided J.H. with a free appropriate public education for the 2007-08 school year. For the reasons that follow, we will affirm.
I. Background
A. The IDEA
The claims at issue arise under the Individuals with Disabilities in Education Act (“IDEA”), which ensures that children with disabilities have access to a free appropriate public education (“FAPE”). 20 U.S.C. § 1412(a)(1). As part of the obligation to provide a FAPE, school districts receiving federal funding must design and implement an Individualized Education Plan (“IEP”) for each student with a disability. 20 U.S.C. § 1414(d)(2)(A). The IEP “consists of, inter alia, a specific statement of a student’s present abilities, goals for improvement, services designed to meet those goals, and a timetable for reaching the goals via the services.” Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 755 (3d Cir.1995). The IEP “must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential.” Mary T. v. Sch. Dist. of Phila., 575 F.3d 235, 240 (3d Cir.2009) (quoting Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir.2004)) (internal quotations omitted).
*757The IDEA provides that parents such as J.H.’s may present a complaint to a local educational agency “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.... ” 20 U.S.C. § 1415(b)(6). The parents may then request a due process hearing, id. at § 1415(f), the results of which generally may be appealed to a state educational agency, id. at § 1415(g). Parties to such an appeal who are aggrieved by the final decision “shall have the right to bring a civil action with respect to the complaint ... which action may be brought in any State court of competent jurisdiction or in a district court of the United States, without regard to the amount in controversy.” Id. at § 1415(i)(2)(A). The district court is empowered to “grant such relief as [it] determines is appropriate.” Id. at § 1415(i)(2)(C)(iii).
B. Facts
We need not add anything to the thorough factual rendition provided by the District Court in its memorandum opinion, and we note here only the specific facts essential to the disposition of this appeal.
J.H. is a minor child who suffers from learning disabilities. He has received special education services in reading, math, and writing. Up through his fifth grade year, corresponding to the 2005-06 school year, J.H. was enrolled in the Souderton Area School District. His parents then unilaterally removed him from the School District and placed him in The Crossroads School (“Crossroads”), a private school for children with learning disabilities. The School District nevertheless continued to draft IEPs for him, in keeping with the IDEA, 20 U.S.C. § 1414(d)(2)(A).
In August 2006, J.H. and his parents filed an administrative complaint against the School District and asked for a due process hearing, seeking tuition reimbursement for J.H.’s enrollment in Crossroads, as well as compensatory education for the 2004-05 and 2005-06 school years. On April 20, 2007, the officer who conducted that due process hearing concluded that, while J.H. was entitled to some compensatory education for the 2004-05 and 2005-06 school years, the School District had satisfied its obligation to offer J.H. a FAPE for the 2006-07 year. The hearing officer thus declined to address in detail the tuition reimbursement request. That decision was upheld on June 2, 2007 by the Pennsylvania Special Education Appeals Panel (“Appeals Panel”).1
Shortly thereafter, the School District issued a new IEP for J.H. for the 2007-08 school year. On September 10, 2007, J.H. and his parents rejected the 2007-08 IEP because, in their view, it failed to address certain needs. They requested a second administrative hearing, seeking tuition reimbursement for J.H.’s Crossroads tuition for the 2007-08 year. On February 6, 2008, the hearing officer ruled in favor of the School District, finding that, since the last hearing officer’s decision, “nothing has changed except that the school district has strengthened its proposed IEP.” (App. at 74.) J.H. and his parents once again appealed. On March 28, 2008, the Appeals Panel reversed the hearing officer’s ruling, finding that “[t]here were a number of deficiencies in the proposed IEP.” (App. at 64.) In a five-page, opinion, the Appeals *758Panel held that, given J.H.’s “severe difficulty with processing, ... the proposed IEP does not address [his] needs in a sufficiently focused, systemic and intensive manner [and] ... is not calculated to provide meaningful education benefit.” (App. at 65.) The Panel thus awarded private school tuition reimbursement for the 2007-OS school year.
The School District then filed the case that is before us now. The School District’s federal complaint asserts that the Appeals Panel erred on multiple grounds and that, because the strengthened IEP is “based on, and is very similar to, the previous IEP,” the Panel has effectively “acted to reverse all the prior administrative decisions .... ” (App. at 9.) The parties filed cross-motions for summary judgment on the administrative record.
On February 11, 2009, in a well-reasoned and painstakingly detailed opinion, the District Court overturned the Appeals Panel’s decision and granted summary judgment in favor of the School District. Souderton Area Sch. Dist. v. J.H., Civ. A. No. 08-2477, 2009 WL 349733 (E.D.Pa. Feb.11, 2009). The Court began by noting that “the Appeals Panel report is sparse [and] provides little explanation as to why it found certain items objectionable. It failed to cite to items in the record in a meaningful manner. In short, its conclusions are clear; its reasoning, less so.” Souderton, 2009 WL 349733, at *5 n. 15. Then, the Court comprehensively reviewed several reports drafted by specialists, prior IEPs, and testing materials to conclude that, despite the Appeals Panel’s findings, (1) the IEP’s statement of present levels of J.H.’s education performance is not imper-missibly vague; (2) the IEP’s annual goals are measurable; (3) the IEP contains numerous specifically designed instructions to address J.H.’s weaknesses; (4) the IEP includes an objective measure of achievement regarding J.H.’s writing skills; (5) the IEP adequately provides the services necessary to address J.H.’s alleged speech and language needs; and (6) the absence of occupational therapy (“OT”) services does not make the IEP inadequate. Id. at *6-*14.
J.H. and his parents timely appealed.2
II. Discussion3
In an IDEA lawsuit, a district court exercises modified de novo review over state administrative proceedings. S.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 270 (3d Cir.2003). The reviewing court is obliged to give “due weight” to the underlying administrative record, id. (citation omitted), which requires the district court “to consider the ‘factual findings from the administrative proceedings [to be] ... prima facie correct’ and, if the court fails to adopt those findings, it must explain its reasons for departing from them.” Mary T., 575 F.3d at 241 (citing Shore Reg’l High Sch. Bd. of Educ., 381 F.3d at 199). As in the administrative proceedings, J.H. and his parents bore the burden of proving that the School District failed to offer a FAPE for J.H. See L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 392 (3d Cir.2006) (“[A]ppellants bear the burden of proof when challenging the appropriateness of the relevant IEPs.”). We review the district court’s factual findings for clear error, but give plenary review to the district court’s legal conclusions. Id.
*759J.H.’s parents assert that the District Court erred in four ways: first, in concluding that the proposed IEP provided a FAPE with regard to J.H.’s writing needs; second, in concluding that the proposed IEP provided a FAPE with regard to J.H.’s OT needs; third, in finding that J.H.’s need for speech and language therapy was adequately addressed in the initial due process hearing and Appeals Panel decision; and fourth, in reversing the second Appeals Panel’s tuition reimbursement award. (Appellant’s Op. Br. at 14, 20, & 24.) We address each of those contentions 'in turn.
A. The IEP and J.H. ’s Writing Needs
The parents argue that the District Court “overlook[ed] the clear failure [of the IEP] to appropriately assess J.H.’s writing....” (Appellant’s Op. Br. at 14.) Specifically, they challenge the ways in which the School District, through the IEP, calculated J.H.’s present level of writing. The School District obtained information about J.H.’s present writing level from three different sources: his progress reports during his time at Crossroads, the results of his 2007 Woodcock Johnson Third Edition Test (“WJ III”), and a Pennsylvania System of School Assessment (“PSSA”) rubric-based writing sample. Souderton, 2009 WL 349733, at *6.
The parents’ first complaint about the School District’s evaluation is that “the WJ III is not designed to provide the kind of information needed to draft IEP goals ... and does not identify a student’s specific strengths and weaknesses.” (Appellant’s Op. Br. at 17.) However, in administering the WJ III, the School District was simply complying with a prior recommendation of the first hearing officer, who wrote:
The IEP would be enhanced by the addition of ‘annual administration of a standardized achievement assessment instrument such as the WJ III’ under the progress monitoring section of each goal----It is also appropriate, and the District is highly advised, to use the WJ III or some other similar instrument with a nationally normed well-researched sample to assess writing.
(App. at 269.) Thus, the hearing officer specifically encouraged the use of the WJ III, indicating that it is a “nationally normed” means to assess writing. (Id.) Moreover, while the Appeals Panel found error with other sources used to obtain present levels, it found no error with the School District’s use of the WJ III.
Second, the parents contend that the PSSA rubric-based writing assessment has “repeatedly been found to be inappropriate.” (Appellant’s Op. Br. at 19.) Before the District Court, they cited reports describing the PSSA as “subjective and not measurable.” Souderton, 2009 WL 349733, at *9, n. 25. The PSSA, however, was not the only test administered to J.H. Rather, it was given along with the WJ III. As the District Court noted, while the PSSA writing rubric may be insufficient when given alone, “when considered in conjunction with an unquestionably objective measure of achievement Dike the WJ III], the rubric may prove to be more effective.” Id. at *9 n. 25.
Finally, the parents contend that J.H. required a research-based writing program to address his weaknesses in writing, instead of the rubric-based program found in the PSSA. That argument, though, ignores that a rubric-based writing assessment is approved for use in public schools throughout the state and, contrary to the parents’ contention, is not entirely subjective. Its use has been identified as a “best practice” by the School District’s language arts coordinator, and, indeed, it is used to assess all student populations, including disabled students. In light of that record, the District Court did not err in holding that the School District’s “proposed use of the [rubric-based] writing process is suffi*760cient to provide J.H. with a FAPE.” Souderton, 2009 WL 349733, at *10.
B. The IEP and J.H. ’s OT Needs
The parents also argue that the District Court was wrong to hold that the proposed IEP provided J.H. a FAPE, given his unmet OT needs. As the District Court noted, however, the parents did not provide the School District with an OT evaluation of J.H. until well after the school year had begun and the School District had already formulated the IEP. The order of events surrounding OT services is as follows.
On April 20, 2007, the first hearing officer found that the School District had satisfied it obligation to offer a FAPE for the 2006-07 school year, even though there were no provisions in the IEP for OT services for J.H. That finding was confirmed by the Appeals Panel the following June. Thereafter, during an IEP team meeting held on August 28, 2007, J.H.’s parents mentioned that J.H. had undergone a private OT evaluation over the summer and that they were now waiting for a formal written report from that evaluation. The 2007-08 IEP was sent to J.H. and his parents the following day. It specifically noted that the private OT report was pending, and it represented that the OT report would be presented to the IEP team when it was provided to the School District.
On September 10, 2007, after rejecting the School District’s 2007-08 IEP, J.H.’s parents sought a second administrative hearing. In their filing, they did not identify the lack of OT services as a reason for rejecting the IEP. The next day, they received the private OT report, but they did not provide it to the School District until October 14, 2007, well after the IEP had been formulated. Upon receipt of the OT report, the School District immediately issued a revised IEP, which noted that the School District had received the private OT evaluation. The School District also inserted into the IEP a clause providing for J.H. to be reevaluated for potential OT needs within thirty days after his return to the school. On October 19, 2007, the School District requested consent from J.H.’s parents to conduct its own OT evaluation of the child.4
In February of the following year, at the second administrative hearing, the hearing officer found that the private OT report was “equivocal” and that the School District was “justified in requesting permission to perform its own OT evaluation.” (App. at 76.) The hearing officer thus held that the lack of OT services did not mean that the IEP was inadequate. “It is possible,” the officer said, “that, after further evaluation, it will become clear that J.H. requires OT services. The privately-secured OT report alone is not enough, however, to demonstrate ... that the School District’s IEP is inappropriate.” (Id.) We agree. Appellants’ contention that the IEP should have provided for OT services assumes a recognition of OT needs that did not exist when the IEP was created. When the issue of OT needs surfaced, the School District reasonably offered to reevaluate J.H. for those needs within thirty days upon his return to public school, which has not yet occurred.5 We cannot *761say that the District Court erred in determining that, under the circumstances, the IEP was adequate.
C. J.H.’s Speech and Language Needs
The parents next argue that the proffered IEP failed to appropriately address J.H.’s speech and language needs. First, they say that the initial due process hearing never actually addressed whether J.H. requires speech and language services, and thus, that the District Court was mistaken in considering the impact that hearing had on the development of the IEP. That assertion, however, is simply not supported by the record. The first hearing officer’s decision included a finding of fact that J.H. did not appear to have a speech or language disability and was thus not eligible for speech and language services. Similarly, the Appeals Panel, after noting that “the parents [had] requested a speech/language evaluation which the [School] District commissioned,” held that “the speech/language specialist stated that [J.H.] did not present a speech/language disability and thus was not eligible for services in this area.” (App. at 273.) Accordingly, the District Court correctly observed that the initial hearing officer and Appeals Panel were “presented with all of these testing results, and both found that J.H. was ineligible for additional speech and language services.” Souderton, 2009 WL 349733, at *12. As noted by the District Court, the first round of administrative proceedings resulted in the conclusion that — despite the absence of speech and language services — the IEP was sufficient. That conclusion “understandably led [the School District] to believe these services were not necessary.” Id. The School District thus “reasonably relied on the decisions [from the first round of administrative proceedings] when drafting the IEP.” Id.
The parents next argue that the District Court erred because, even if the School District could reasonably rely on the decisions from the first round of administrative proceedings, evidence has come to light since those proceedings that shows that the IEP cannot be adequate without speech and language services. (Appellant’s Op. Br. at 21.) Specifically, the parents point to evidence that J.H. was provided with speech and language therapy during his 2005-06 year at Crossroads. However, the foundations for the parents’ argument did not arise after the initial administrative proceeding, and, in any event, the District Court considered the very evidence to which the parents now allude.
The evidence of J.H.’s speech and language services at Crossroads is acknowledged in the IEP for the 2007-08 school year and was discussed at length by the District Court. But the fact that J.H. received speech and language services at Crossroads did not convince the District Court that he required those services, and we too are unpersuaded. The record makes clear that Crossroads provides large-group speech and language therapy to all of its students. Thus, J.H.’s participation in group speech and language therapy at Crossroads does not reveal anything about his individual needs. And, although J.H. was also enrolled in small group therapy at Crossroads, receiving services does not, in itself, prove the need for services. Even if accepted as some evidence of need, the enrollment does not require the conclusion that the parents demand. J.H.’s enrollment in small group therapy was based on his Crossroads admissions screening as well as a December 2005 evaluation which revealed that he had a low working memory score. The admission screening information and the December 2005 evaluation existed when the initial hearing officer and Appeals Panel determined that J.H. did not need speech and language services. We cannot say, any *762more than the District Court could, that the assessment of J.H.’s needs made during those initial proceedings was erroneous. In short, there does not appear to be new evidence that went unconsidered.6
D. The Tuition Reimbursement Award
The IDEA provides that parents of children with disabilities who place those children in private school may seek reimbursement from their public school district when it is shown that the school district failed to offer a FAPE and that the choice of placement was appropriate. 20 U.S.C. § 1412(a)(10)(C)(ii). J.H.’s parents contend that the District Court’s overturning of the second Appeals Panel’s award of tuition reimbursement is reversible error because they had made the necessary showing to receive reimbursement. That argument, of course, depends upon a holding that the School District failed to offer a FAPE to J.H. through the 2007-08 IEP. Given the District Court’s and our conclusion to the contrary, no reimbursement was required.
III. Conclusion
The District Court’s description of the facts reflects a fair and accurate review of the administrative record with respect to J.H.’s education. There is no error, let alone clear error, in the Court’s factual determinations. The conclusion that the School District offered J.H. a FAPE through its 2007-08 IEP is legally sound. Accordingly, though we can certainly appreciate the intense interest the parents have in J.H.’s welfare and their desire that he receive the best possible education, we must affirm the judgment of the District Court.
. On August 31, 2007, J.H. and his parents filed a complaint in the United States District Court for the Eastern District of Pennsylvania challenging the June 2, 2007 Appeals Panel decision. On March, 20, 2008 the District Court affirmed the Appeals Panel decision in its entirety. See J.H. v. Souderton Area Sch. Dist., Civ. A., No. 07-3658, 2008 WL 746823 (E.D.Pa. Mar.20, 2008). That decision is not the subject of this appeal.
. We recognize that appellants include not only J.H.’s parents but J.H. himself. However, for ease of reference, we will refer to the appellants simply as the "parents” throughout the discussion herein.
. The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and pursuant to a grant of jurisdiction contained in the IDEA, 20 U.S.C. § 1415(i)(3)(A). We have jurisdiction under 28 U.S.C. § 1291.
. It is not clear from the record whether J.H.’s parents ever granted the school permission to conduct its own OT evaluation.
. We also agree with the District Court that there is insufficient evidence to support the idea that J.H.’s handwriting issues were of such a nature that the School District can be presumed to have been aware of the need for OT services. Souderton I, 2009 WL 349733, at * 13. The parents do not appear to challenge the District Court's factual findings regarding this matter and so we need not repeat those findings here.
. We also agree with the District Court that the IEP does, in fact, contain some speech and language services. Specifically, under the IEP, J.H.’s special education teacher must consult with a speech therapist on a monthly basis. As the District Court held, the offer of a monthly consultation with the speech therapist was "sufficient to meet the needs J.H. was believed [to] have at the time.” Souderton, 2009 WL 349733, at * 12.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474246/
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the judgment of conviction and sentence.
Stevey was convicted of Bank Robbery, 18 U.S.C. § 2113(a), Armed Bank Robbery, 18 U.S.C. § 2113(d), and Using or Brandishing a Firearm during Commission of a Crime of Violence, 18 U.S.C. § 924(c) (A) (ii), all arising from the robbery of two banks. The District Court sentenced Stevey to a total term of imprisonment of 439 months, and restitution in the amount of $27,925.00.
A conviction may be overturned “[o]nly when the record contains no evidence, regardless of how it is weighted, from which the jury could find guilt beyond a reasonable doubt.” United States v. McNeill, 887 F.2d 448, 450 (3d Cir.1989).
Stevey does not challenge the sufficiency of evidence that two armed robberies took place. Stevey does claim, however, that the evidence was insufficient to establish that he participated in the robbery at either the Irwin Bank and Trust or the Parkvale Savings Bank.
With regard to the convictions on charges arising from the Irwin Bank robbery, the testimony of Stevey’s accomplice implicated him for being involved in discussions about the robbery the night before, and also as the one who selected the bank. A jailhouse informant testified that Stevey admitted his involvement in the Irwin Bank robbery and that they used a gun obtained in a burglary. The gun was later found in the house in which Stevey stayed while in that area and the burglary occurred at a nearby house. Finally, evidence indicated that Stevey spent some of *764the money obtained in the robbery on the same day as the crime.
Our review of the record leads us to conclude that the jury was properly instructed on how to evaluate the testimony of the informant. For all of these reasons, we find that there is no question that the jury’s decision to convict Stevey on the three counts related to this armed robbery was substantially supported by the evidence.
With regard to the Parkvale Savings Bank, the same jailhouse informant testified to Stevey’s admission of involvement in this crime. Again, the jury was properly instructed on how to evaluate the informant’s testimony. Additionally, the government provided a host of circumstantial evidence, ranging from cell phone records to the testimony of an eyewitness who identified Stevey as one of the men she saw shortly after the robbery in one of the cars associated with the crime. We conclude that the record substantially supports the jury’s decision to convict Stevey on the charges related to this armed robbery.
Finally, with regard to Stevey’s appeal for a new trial based upon Rule 33 of the Federal Rules of Criminal Procedure, we note that no such post-verdict motion was made before the District Court. Hence, we cannot consider it.
For all of these reasons, we will affirm the judgment of conviction and sentence of the District Court.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474248/
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Diane Miller appeals the decision of the District Court granting summary judgment in favor of both Allegheny County and John K. Weinstein, who is the Treasurer of Allegheny County. Because our *766opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the order of the District Court and declare this appeal to be wholly frivolous.
Miller, a Christian, argues that Weinstein and Allegheny County violated the Free Exercise Clause of the First Amendment of the Constitution because Weinstein fired her for observing the Christian holiday of Good Friday in 2005. Yet, Miller acknowledges that she was not discharged for her religious observance. Instead, her own testimony points to an inflammatory email that she wrote to Weinstein, after the fact, as the cause of her dismissal. The District Court properly distinguished Miller’s email from her religious observance conduct. Moreover, we find her claims meritless that disciplinary action in the form of a reprimand letter and a threat of docked pay for her unexcused absence from work on Good Friday substantially burdened her free exercise of religion. For these reasons, the District Court did not err in dismissing this claim.
Miller also contends that Weinstein and Allegheny County violated the Free Speech Clause of the First Amendment by firing her in retaliation for the email that she sent to Weinstein complaining about losing a day’s pay for her unexcused absence on Good Friday. We disagree. In the email Miller complained of the docking of her pay, which is a matter of private concern that is not subject to First Amendment protection. Moreover, the defendants were justified in viewing the remainder of the email as a potential criminal violation, given Miller’s offer of a bribe in exchange for the return of her docked pay.1 Therefore, we conclude that the District Court properly ruled that there was no need to even engage the balancing test established in Pickering v. Board of Education, 391 U.S. 563, 574, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).
Regarding Miller’s claim that defendants violated her rights under the Petition Clause of the First Amendment, there is no question that Miller’s email does not constitute a “petition” sufficient to evoke the protections of this clause. With regard to her official grievances filed with the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission, and other previous grievances, the District Court correctly distinguished Miller’s pure speculation from the favorable inferences of facts required at summary judgment. The record was devoid of any evidence of a causal link between her grievance claims and her termination. Temporal proximity alone is insufficient. The District Court properly dismissed the claim.
Finally, Miller’s political patronage discrimination claims are also meritless. As with her Petition Clause claim, Miller’s assertion that her failure to buy a $250 fund-raiser ticket caused her employment termination is supported only by imagined connections rather than bona fide inferences of facts on the record.
For all of these reasons, we will affirm the order of the District Court.
. We acknowledge that Miller's pay was never, in fact, docked. We refer here only to Miller’s words in her email.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474250/
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Larry Cranston Brooks appeals from a judgment of conviction and sentence entered by the United States District Court for the Western District of Pennsylvania following Brooks’s conviction for conspiracy to possess and distribute less than 100 grams of heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Brooks raises three issues on appeal. First, he contends that the District Court erred by denying his motion to suppress intercepted wire communications. Second, he contends that the evidence presented at trial was insufficient to convict him of conspiracy. And, third, he argues that the District Court erred by refusing to instruct the jury that a buyer-seller relationship is not, by itself, proof of a conspiracy. Because we find no merit in his arguments, we will affirm.
I. Background
In March of 2007, the Drug Enforcement Agency (“DEA”) learned of a large-scale criminal organization, headed by Albert Tyrone McAllister, that was responsible for transporting heroin from New Jersey to Pittsburgh, Pennsylvania. The DEA learned through surveillance that heroin was being stored at a “stash house” located at 630 Margaretta Street in Pittsburgh’s Braddock neighborhood. Further investigation revealed that the stash house was owned by McAllister. The DEA also learned that McAllister’s cousin, Darnell Jackson, received incoming shipments of heroin at the stash house, which he then distributed in the Pittsburgh area.
Early in the investigation, the DEA used pen registers to track McAllister’s dealings, but McAllister began changing cell phones frequently. Jackson, on the other hand, never changed his cell phone number and often communicated with major targets of the investigation. Accordingly, the DEA sought a Title III wiretap authorization for Jackson’s cell phone by submitting to the District Court an application and accompanying affidavit specifying the need for the wiretap.1 The DEA was granted authorization to tap Jackson’s phone and began doing so on December 17, 2007. The wiretap authorization was renewed twice,2 and Jackson’s phone was monitored until March 4, 2008.
Brooks came under scrutiny shortly after the DEA began tapping Jackson’s cell phone. The conversations between Brooks and Jackson revealed that Brooks was both a user and distributor of heroin. Working from the information obtained on the wiretap, police observed Brooks and Jackson exchange large amounts of cash for large quantities of heroin on multiple occasions. Sometimes those exchanges involved Jackson extending credit to Brooks by “fronting” him heroin. During their phone conversations, Brooks learned critical details about the roles, movements, and precautions taken by higher-ups in the *769organization, including McAllister and the people who physically transported heroin to Pittsburgh.
The conversations thus revealed a high level of mutual trust between the two men, which was confirmed by other aspects of their relationship. Far from the treatment given an ordinary drug purchaser, Brooks had priority status and was given special treatment by Jackson in a number of ways. On several occasions, Jackson agreed to “hold” heroin for Brooks, meaning he promised not to sell it to anyone else. Jackson also alerted Brooks when he was expecting a shipment of high quality heroin and promised to sell to Brooks before anyone else, telling him “I’m gettin’ you first.” (Tr. No. 3818 at 2:32-3:09.)3 This special treatment also included Jackson going out of his way to get Brooks the best quality and price possible. During one conversation, Jackson even agreed to exchange a better quality batch of heroin for a low-quality batch he had sold to Brooks.
In return, Jackson was given special treatment by Brooks as well. Brooks trusted Jackson enough to make him his go-to source, telling him, “just always hold something for me; I’ll buy the sh — from you, dog.” (Tr. No. 2240 at 1:30-1:33.) On one occasion, when Jackson’s heroin supply began to run dry, Brooks attempted to find someone who would sell Jackson bulk quantities of heroin and offered to extend Jackson credit. During that time, Brooks went so far as to reverse roles and send Jackson heroin to tide him over.
The conversations between Brooks and Jackson also revealed that Brooks bought heroin from Jackson on behalf of Brooks’s nephew. Brooks discussed with Jackson the price to be paid for that heroin, and, on more than one occasion, he attempted to ascertain the quality of the heroin Jackson was receiving so that his nephew could determine how much heroin to buy.
By the end of March 2008, the DEA was ready to dismantle the drug operation, and it executed a search warrant at the Braddock stash house in early April 2008. A grand jury subsequently returned a one-count indictment charging Brooks with conspiracy to possess and distribute less than 100 grams of heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). He was arrested the same day.
Before trial, Brooks filed a motion to suppress the intercepted wire communications, arguing that the requirements set forth in 18 U.S.C. § 2518 had not been satisfied. Specifically, he argued that the applications for wiretap authorization did not contain sufficient facts to justify a wiretap and failed to show that other investigative techniques had been, or were likely to be, insufficient. The District Court denied the motion.
At trial, Brooks’s defense was that, although the evidence showed heroin transactions between him and Jackson, there was not a sufficient basis to find him guilty of conspiracy to distribute heroin. Accordingly, in his Requested Jury Instructions, Brooks included a specific instruction entitled “Proof of Drug Transaction Does Not Establish Conspiracy,” which read as follows:
Even if you believe that the evidence establishes that Larry Brooks either bought heroin from or sold heroin to Darnell Jackson that does not, in and of itself, amount to proof of an illegal agreement to distribute heroin between the two individuals. Drug transactions are, by their very nature, transactions *770between two people, and a drug transaction does not constitute a conspiracy between those two people.
Thus, you must be satisfied, beyond a reasonable doubt, that the Government has proved that the alleged transactions between Brooks and Jackson are not simply buyer-seller transactions, but rather that they involved each other in the common goal of distributing heroin to others. It must be proved that the conspirators had a mutual stake in the activities of the other person that extended beyond any individual transactions. Even should you find that the Defendant or Jackson was involved in distributing heroin to others that alone does not prove that they entered into a mutual agreement to do so. For example, a person who buys drugs from somebody has not necessarily agreed to be a member of a larger conspiracy in which the seller may be involved. Conversely, the mere fact that a person sells drugs to a purchaser, who then resells those drugs to others, does not prove that the original seller has conspired with his purchaser to distribute drugs. You must be satisfied that the evidence has established, beyond a reasonable doubt, the unity of purpose, intent to achieve a common goal and agreement to work together toward that goal between the conspirators to find Larry Brooks guilty of conspiracy. Otherwise, you must acquit him.
(App. atA25-26.)
The District Court refused to instruct the jury with the exact language requested by Brooks, but it did indicate that Brooks’s instruction would be given “in other words.” (App. at A160.) When Brooks’s attorney objected to the omission of Brooks’s requested instruction, the Court reiterated that his request had been granted in other words. The Court further informed Brooks’s attorney that he was free to present his defense theory to the jury, which he did. Although the District Court allowed Brooks’s attorney to explain his legal theory to the jury, it also rightly instructed the jury that, with respect to the applicable law, the jury was to be guided only by the Court, not by the lawyers. Specifically, the Court stated:
It is the Court’s job to decide what rules of law apply to the case.... This is the Court’s job. It is not the job of the lawyers. So while the lawyers may have commented during the trial and in their arguments on some of these rules, you are to be guided only by what the Court says about it.
(App. at A164.)
The jury convicted Brooks of conspiracy, as alleged in the indictment, and Brooks timely filed this appeal.
II. Discussion4
A. Motion to Suppress
Brooks argues that his motion to suppress evidence of intercepted wire communications should have been granted because the wiretap authorizations were issued without a showing of necessity, as is required by 18 U.S.C. § 2518.5 “We review de novo the question of whether a full and complete statement of necessity *771for a wiretap was made in the application. Once it is determined that the statement was made, we will review the court’s determination of necessity for an abuse of discretion.” United States v. Phillips, 959 F.2d 1187, 1189 (3d Cir. 1992).
Pursuant to 18 U.S.C. § 2518(1)(c), an application for a wiretap order must contain: “[a] full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(e). Likewise, before authorizing a wiretap, the authorizing judge must find that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” Id. § 2518(3)(c). However, the burden of proof imposed on the government in this regard is “not great,” United States v. Armocida, 515 F.2d 29, 38 (3d Cir.1975), and the government is not required to exhaust all other investigative procedures before resorting to electronic surveillance. United, States v. Williams, 124 F.3d 411, 418 (3d Cir.1997). Rather, evidence that normal investigative techniques reasonably appear unlikely to succeed if tried is sufficient. Id. When determining whether that standard has been satisfied, “[t]he government’s showing is to be tested in a practical and commonsense fashion.” United States v. McGlory, 968 F.2d 309, 345 (3d Cir.1992). Although mere generalities and conclusory statements will not suffice, “[t]he government need only lay a factual predicate sufficient to inform the judge why other methods of investigation are not sufficient.” Williams, 124 F.3d at 418; McGlory, 968 F.2d at 345. Finally, “a court may properly take into account affirmations which are founded in part upon the experience of specially trained agents.” Williams, 124 F.3d at 418.
Brooks contends that the government’s wiretap applications were insufficient because they contained mere generalities and did not set forth with sufficient specificity the reasons why, in this particular investigation, ordinary investigative measures would fail. He points to the fact that, at least initially, the government had substantial success by using investigation methods other than wiretapping Jackson’s phone. And, while Brooks concedes that the government subsequently faced significant obstacles that frustrated the progress of its investigation, he nonetheless maintains that the government should have continued to use traditional methods of investigation, rather than “leapfrogging] into the invasive techniques of wiretapping.” (Appellant’s Op. Br. at 31.)
Contrary to Brooks’s allegations of generality, the record reveals that the three wiretap applications demonstrated in sufficient detail that other techniques appeared unlikely to succeed. The affidavits submitted with the applications explain why several traditional investigative techniques were of limited effectiveness due to the size and structure of the conspiracy. As mentioned earlier, the conspirators’ use of prepaid phones with no subscriber information, the limited value of physical surveillance, the limited effectiveness of search warrants, grand jury subpoenas and witness interviews, and the ineffectiveness of controlled buys were all noted, and they suffice to demonstrate that a wiretap was likely to succeed where other techniques had failed or would fail in gathering essential information about the heroin distribution ring. Accordingly, we conclude that the requirements of 18 U.S.C. § 2518 were satisfied and that the District Court did not err in denying the motion to suppress.
B. Evidence of Conspiracy
Turning to whether the government offered sufficient evidence to support *772the jury’s finding that Brooks was guilty of conspiracy to possess and distribute heroin, we apply a particularly deferential standard of review. United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998). We consider the evidence in the light most favorable to the government and will uphold the conviction if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.1999).
To sustain a conviction for conspiracy, the government must establish: (1) a unity of purpose between the alleged conspirators, (2) an intent to achieve a common goal, and (3) an agreement to work together toward that goal. Id. Our Circuit has held that, without more, a simple buyer-seller relationship is insufficient to establish that a buyer was a member of the seller’s conspiracy. United States v. Pressler, 256 F.3d 144 (3d Cir.2001); Gibbs, 190 F.3d at 197; United States v. Price, 13 F.3d 711, 727 (3d Cir.1994). However, we have also acknowledged that “even an occasional supplier (and by implication an occasional buyer for redistribution) can be shown to be a member of the conspiracy by evidence, direct or inferential, of knowledge that she or he was part of a larger operation.” Gibbs, 190 F.3d at 198. In Gibbs, we articulated our approach to conspiracy cases involving drug transactions as follows:
In cases where the defendant’s only involvement in the conspiracy appears to be drug purchases, courts have looked to the surrounding circumstances to determine whether the defendant is a mere buyer who had such limited dealings with the conspiracy that he cannot be held to be a conspirator, or whether he has knowledge of the conspiracy to the extent that his drug purchases are circumstantial evidence of his intent to join that conspiracy.
Id. at 199.
In making this determination, some of the factors courts have considered include: the length of the affiliation between the defendant and the conspiracy; whether there is an established method of payment; the extent to which transactions are standardized; whether there is a demonstrated level of mutual trust; whether the buyer’s transactions involved large amounts of drugs; and whether the buyer purchased drugs on credit. Id. at 199-200. Although these factors are not dispositive, “the presence of one or more of these factors furthers the inference that the buyer knew he was part of a larger operation and hence can be held responsible as a coconspirator.” United States v. Iglesias, 535 F.3d 150, 156 (3d Cir.2008).
Brooks’s primary contention is that, even when viewed in the light most favorable to the government, the evidence put forth at trial shows nothing more than a mere buyer-seller relationship between himself and Jackson. The record, however, is to the contrary. The government presented ample evidence of the various factors identified in Gibbs. In addition to showing numerous drug transactions involving large amounts of heroin, the government adduced other evidence demonstrating a high level of mutual trust between Brooks and Jackson. Each gave the other special treatment. Jackson went out of his way to get Brooks the best possible price and quality of heroin, sold heroin to Brooks before anyone else, and placed drugs on hold for Brooks. In return, Brooks promised to buy from Jackson in the future and even attempted to find Jackson a supplier when Jackson had trouble obtaining heroin. Both men extended credit to each other. And Brooks served as a go-be*773tween in his nephew’s heroin transactions with Jackson. Based on this evidence, a reasonable juror could have concluded that Brooks and at least one other person shared the common goal of distributing heroin, the intent to achieve that goal, and a tacit agreement to cooperate to achieve it.
C. Jury Instruction
Finally, we address Brooks’s argument that the District Court erred by refusing to give the jury a proposed instruction on the buyer-seller relationship. We review de novo a district court’s refusal to instruct the jury on a defense theory when, as in this case, the defendant objected to the refusal to give the charge. United States v. Stewart, 185 F.3d 112, 124 (3d Cir.1999); see also United States v. Price, 13 F.3d 711, 724 (3d Cir.1994) (‘We review de novo the legal sufficiency of jury instructions to which a defendant objected, but so long as the court properly articulated the relevant legal criteria we review the particular language used on an abuse of discretion standard.”).
In United States v. Hoffecker, we stated that: “A defendant is entitled to a theory of defense instruction if (1) he proposes a correct statement of the law; (2) his theory is supported by the evidence; (3) the theory of defense is not part of the charge; and (4) the failure to include an instruction of the defendant’s theory would deny him a fair trial.” 530 F.3d 137, 176 (3d Cir. 2008). Accordingly, we have held that a District Court’s refusal to give a proposed jury instruction amounts to reversible error only if the omitted instruction is legally correct, not substantially covered by other instructions, and so important that its omission prejudiced the defendant. United States v. Urban, 404 F.3d 754, 779 (3d Cir.2005); United States v. Davis, 183 F.3d 231, 250 (3d Cir.1999).
Brooks contends that, while the District Court correctly stated the basic elements of conspiracy, it erred because it did not address the particular defense theory that a buyer-seller relationship is not, in and of it itself, proof of a conspiracy. He further contends that without such an instruction the jury was led to believe that evidence of the conversations between Jackson and Brooks suggesting drug sales would, without more, suffice to establish a conspiracy between them. Again, his contentions are unpersuasive.
Although Brooks’s proposed instruction contained some correct statements of the law, it also contained notable errors. For example, the proposed instruction provided that, in order to find Brooks guilty, the jury had to find that “there was an agreement between Brooks, Jackson, and others to distribute heroin to others.” That is not the law and may have confused the jury by implying that Brooks, Jackson, and unspecified “others” all had to be shown to be participants in a conspiracy, when the government only needed to show that Brooks conspired with one other person to distribute heroin. See United States v. Greenidge, 495 F.3d 85, 100 (3d Cir.2007). Brooks’s proposed instructions also incorrectly stated that “it must be proved that the conspirators had a mutual stake in the activities of the other person that extended beyond any individual transactions.” In actuality, “a conspirator’s stake in the venture is not an essential element of the crime of conspiracy.” United States v. McKee, 506 F.3d 225, 242 (3d Cir.2007). Thus, Brooks was not entitled to his jury instruction as drafted.
Brooks’s complaint that the jury should have been given a defense theory instruction is also unwarranted because the essence of his theory did find support in an instruction the District Court gave. The Court told the jury that “a person who has *774no knowledge of the conspiracy but who happens to act in a way that advances some object or purpose of the conspiracy” — as would be true of the buyer in a simple buyer-seller transaction — “does not thereby become a member of the conspiracy.” (App. at A176-77.) Given that the “district court has substantial discretion with respect to specific wording of jury instructions and need not give [a] proposed instruction if [its] essential points are covered by those that are given,” see Douglas v. Owens, 50 F.3d 1226, 1233 (3d Cir.1995) (citations omitted), and since a defendant “is not entitled to prescribe exact language of’ a theory-of-defense instruction, the instruction the Court gave was more than adequate to accommodate the defense theory of the case. Id. At the invitation of the Court, Brooks’s counsel argued that theory to the jury without any objection by the government. There was, in short, a foundation in the instructions for the argument, and Brooks, through counsel, made it. There was thus no error in the District Court’s handling of Brooks’s request for a defense theory instruction.
III. Conclusion
The District Court properly denied Brooks’s motion to suppress and did not err in refusing to adopt Brooks’s language for a defense theory jury instruction. Further, the evidence presented at trial was sufficient for a reasonable trier of fact to conclude that Brooks was guilty of conspiracy to distribute heroin, as charged. We will therefore affirm the judgment of the District Court.
. The affidavit in support of the application explained why several traditional investigative techniques were of limited effectiveness due to the wide-ranging character of the conspiracy. Specifically, the conspirators' use of prepaid phones with no subscriber information, the limited value of physical surveillance, the limited effectiveness of search warrants, grand jury subpoenas and witness interviews and the ineffectiveness of controlled buys were all cited as showing the necessity for the wiretap.
. This was done via renewal applications filed by the DEA on January 15, 2008 and February 15, 2008. These applications contained essentially the same showing of necessity as the first application.
. References to "Tr. No.” are to the track numbers on the compact disc recording of the conversations caught on the wiretap.
. The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
. 18 U.S.C. § 2518(10)(a)(i)-(iii) permits any "aggrieved person to move to suppress the contents of any wire or oral communication intercepted pursuant to that chapter.” An "aggrieved person” is defined by 18 U.S.C. § 2510(11) as "a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.”
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474252/
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OPINION
SLOVITER, Circuit Judge.
Susan Castellani appeals from an order of the District Court granting summary judgment to the defendants on Castellani’s claim that she was unlawfully terminated from her employment with Bucks County Municipality in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. Ann. §§ 951-963. For the reasons that follow, we will affirm.
I.
Castellani began employment as a 911 dispatcher for the County on June 17, 2002. On September 16, 2004, Castellani suffered a hypoglycemic reaction at work and was diagnosed with insulin resistant (Type II) diabetes. Shortly thereafter, Castellani began a period of leave under the Family Medical Leave Act (“FMLA”). Castellani remained on leave through March 20, 2005, when she exhausted her total leave allowance under the FMLA and her union contract. She did not return to work thereafter, nor did she provide an explanation why.
On March 21, 2005, Rachael Cherry, a County Human Resource employee, sent Castellani a letter stating that she must return to work by Friday, March 25, 2005 with a doctor’s note and submit requested accommodations in writing beforehand, or her employment would be terminated. After Castellani responded by letter requesting more time and an “interactive process[,]” the County extended this deadline to April 1, 2005. On April 4, 2005, Carmen Thome, Director of Human Resources for the County, sent Castellani a formal notice of termination after not receiving the requested information. The County stated that Castellani was not terminated for performance issues, but for failing to return to work after exhausting her leave.
On April 8, 2005, the County received a letter from Castellani’s physician, authorizing her to return to work with certain restrictions. Defendants took no action after receiving this letter. Castellani filed a grievance through her union and was rehired by the County as a permit clerk on August 8, 2005. As relevant here, Castel-lani later filed a complaint against the County and employees Thome, Cherry, and Meredith Dolan alleging, inter alia, claims under the ADA and the PHRA. The District Court granted summary judgment for the County and its employees on those counts.
II.
The District Court had jurisdiction over Castellani’s claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367. This court has jurisdiction under 28 U.S.C. § 1291. The standard of review for a district court’s grant of summary judgment is de novo. CAT Internet Servs. Inc. v. Providence Wash. Ins. Co., 333 F.3d 138, 141 (3d Cir.2003). A court may grant summary judgment if, drawing all inferences in favor of the nonmoving party, “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
III.
Castellani alleges that the County and its employees violated the ADA and PHRA by failing to engage in an interactive process to provide reasonable accom*777modations and by terminating her in retaliation for requesting these actions. We will consider the ADA and PHRA claims simultaneously, because the Acts serve the same goals and are interpreted coexten-sively. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir.1996).
To prevail under the ADA, an employee must show “that she 1) has a disability, 2) is a qualified individual, and 3) has suffered an adverse employment action because of that disability.” Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir.2006) (internal quotation omitted). For purposes of this appeal, we will assume that Castellani is disabled from Type II diabetes and has suffered an adverse employment action. An employee is a qualified individual if she 1) “has the requisite skill, experience, education and other job-related requirements” and 2) “with or without reasonable accommodation, can perform the essential functions of that position.” Turner, 440 F.3d at 612 (citing 29 C.F.R. § 1630.2(n)). Castellani’s skills are not in dispute.
We have held that employers and employees “have a duty to assist in the search for a reasonable accommodation and to act in good faith.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312 (3d Cir.1999). In order to show that an employer has breached its duty to engage in the interactive accommodation process, the employee must demonstrate that “the employer knew of the disability,” that “the employee requested accommodations,” that “the employer did not make a good faith effort to assist,” and that “the employee could have been reasonably accommodated but for employer’s lack of good faith.” Id. at 319-20. If the employee cannot be reasonably accommodated in her previous position, she must identify another position that is vacant and funded, at or below her level, for which she is qualified to perform the essential functions. Williams v. Philadelphia Housing Auth. Police Dept., 380 F.3d 751, 770 (3d Cir.2004).
An employee need not identify an open position before the employer’s duty to engage in the interactive process attaches. Mengine v. Runyon, 114 F.3d 415, 420-21 (3d Cir.1997). But if, after an opportunity for discovery, the employee still has not identified a position into which she could have transferred, the court must grant summary judgment in favor of the defendant. Shapiro v. Twp. of Lakewood, 292 F.3d 356, 360 (3d Cir.2002).
Both parties agree Castellani could not return to her post as a 911 dispatcher. However, after taking discovery, Castellani failed to produce any evidence that a position she was qualified to perform was available as of her termination on April 4, 2005, including the clerk position she currently holds. Thus, the District Court properly granted summary judgment on her reasonable accommodation claim.
In addition, the District Court did not err in granting summary judgment on Castellani’s retaliation claim. To state a claim for retaliation under the ADA, an employee must show 1) she engaged in a protected activity; 2) the employer took adverse action; and 3) a causal connection. Fogleman v. Mercy Hosp., 283 F.3d 561, 567-68 (3d Cir.2002) (citing Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir.1997)). If an employee establishes a prima facie case, the employer must give a legitimate, nondiscriminatory reason for the termination. Krouse, 126 F.3d at 500. The burden then shifts to the employee to show that the employer’s reason is pretext. Id. at 501. An employee may rely on direct evidence or circumstantial evidence such as “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the employer’s explanation. Shaner v. Synthes, 204 F.3d 494, 503 (3d *778Cir.2000) (quoting Fuentes v. Perskie, 32 F.3d 759, 764-65 (3d Cir.1994)).
Here, the County and its employees stated that Castellani was terminated because she failed to return to work with the appropriate medical documentation. Thus, the burden shifted to Castellani to show this explanation was pretext. Castellani has not made such a showing.
IV.
For the above-stated reasons, we will affirm the judgment of the District Court granting summary judgment.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474254/
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OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Charles Lobel appeals from a judgment of the District Court dismissing his amended complaint pursuant to the False Claims Act, 81 U.S.C. § 3729, for failure to state a claim. We will affirm.
I.
Because we write for the parties, we recount only the essential facts. Lobel was employed as a pharmacist by Defendant Express Scripts, Inc. (ESI). ESI is an independent pharmacy benefit manager that provided mail order prescriptions to participants in the Department of Defense’s TRICARE health program. Following his termination in May 2005, Lobel sued ESI claiming the company failed to comply with 21 C.F.R. § 1306.05, which requires that all prescriptions for controlled substances be dated, signed, and bear the registration number of the medical practitioner.
After the Government declined to intervene in the case, ESI moved to dismiss Lobel’s amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The District Court granted ESI’s motion and Lobel filed this timely appeal, claiming that his amended complaint adequately pleaded violations of sections 3729(a)(l)-(2) of the False Claims Act under theories of express and implied certification.1
II.
As both parties correctly note, to state a claim for false certification of compliance with a regulation, a relator under the False Claims Act must allege that: (1) defendant violated the regulation; (2) defendant certified its compliance with the regulation to a federal payor in spite of its violation of the regulation; and (3) defendant’s certification of compliance was a condition of payment. Rodriguez v. Our Lady of Lourdes Med. Ctr., 552 F.3d 297, 304 (3d Cir.2008). In considering Lobel’s express and implied certification claims in this appeal, we focus on the third factor.
We reject Lobel’s express certification claim out of hand. His amended complaint fails to identify a single claim submitted by ESI in which it represented falsely to the Government that it complied with regulations that affect its eligibility for payment. This is plainly insufficient under Rodriguez. See id. at 303.
Although not as specious as his express certification claim, Lobel’s implied certification argument suffers from obvious defects. First, Lobel challenges the District Court’s judgment by relying upon the incorrect legal standard. At pages 9, 10, and 20 of his brief, Lobel relies on the Supreme Court’s decision in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). As ESI rightly counters, the Supreme Court overruled Conley in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Moreover, as the Supreme Court made clear last term: “bare assertions,” “legal conclusions,” and “formulaic recitationfs] of the elements of a cause of action” *780are “not entitled to the assumption of truth.” Ashcroft v. Iqbal, — U.S. —, —-—, 129 S.Ct. 1937, 1950-51, 173 L.Ed.2d 868 (2009). Lobel’s failure even to cite Twombly and Iqbal in either of his two briefs is a telling omission. When Lobel’s amended complaint is analyzed under the more exacting standard established by those cases, it falls well short.
Lobel cites seven paragraphs of his amended complaint to support his argument that he stated a claim upon which relief may be granted. Two of these seven paragraphs — paragraphs 18 and 24— merely quote the False Claims Act and 21 C.F.R. § 1306.05. Four other paragraphs — paragraphs 17, 25, 26, and 27— allege in conclusory fashion that ESI violated the False Claims Act by submitting claims for prescriptions filled in violation of § 1306.05. Under Iqbal, these concluso-ry allegations are not presumed to be true. 129 S.Ct. at 1950. Likewise, paragraph 28, which alleges materiality, is a legal conclusion which the District Court was not obliged to accept as true. Id. at 1949.2 In addition to these factual deficiencies, after reviewing the record, we agree with ESI that the violation of § 1306.05 Lobel alleges cannot, as a matter of law, give rise to liability under the False Claims Act because compliance with the regulation is not a “condition of payment.” See Rodriguez, 552 F.3d at 304.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The District Court had jurisdiction under 28 U.S.C. § 1331 and 31 U.S.C. § 3732(a). We have jurisdiction under 28 U.S.C. § 1291.
. In his Reply Brief, Lobel argues for the first time that the Fraud Enforcement and Recovery Act of 2009 has changed the standard. It is well established that arguments not raised in an appellant’s opening brief are waived. See, e.g., United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005). Even had this argument not been waived, it suffers from the same defect as the argument we rejected on the merits.
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https://www.courtlistener.com/api/rest/v3/opinions/8474256/
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OPINION
PER CURIAM.
Michael Lee Austin, a state prisoner proceeding pro se, appeals the order of the District Court granting Appellees’ respective motions to dismiss and denying his request to equitably toll the statute of limitations pending the exhaustion of his administrative remedies. For the reasons that follow, we will affirm.
I.
Austin is a prisoner in the custody of the Pennsylvania Department of Corrections (“DOC”) who, during the relevant time, was incarcerated at the State Correctional Institution at Rockview (“Rockview”).1 In October 2007, he commenced this action by filing a 42 U.S.C. § 1983 complaint in the District Court against DOC Secretary Jeffrey Beard and the following Rockview officials: Superintendent Franklin Tennis, Deputy Superintendents Marirosa Lamas and R. McMillan, Chief Psychologist Dr. Charles Walmer, Program Manager Melinda Smith, and psychiatrist Dr. Kevin Burke. Austin’s complaint raised First, Eighth, and Fourteenth Amendment claims, as well as a state law claim for breach of the duty of confidentiality. On the first page of his complaint, he admitted that he had not completed the prison’s grievance process with respect to his claims, and the various prison documents he submitted with his complaint reflected that incompleteness.
In February 2008, the defendants moved to dismiss the complaint pursuant to Fed. R.Civ.P. 12(b)(6) but did not submit an accompanying brief at that time. About a week later, Dr. Burke, who had retained separate counsel, filed an independent motion to dismiss and an accompanying brief. Shortly thereafter, the remaining defendants (hereinafter collectively referred to as “the DOC Officials”) filed a brief in support of their February 2008 motion to dismiss, arguing, inter alia, that Austin had failed to exhaust his administrative remedies with respect to his federal claims as required by the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a). Dr. Burke had not raised this argument in his brief. Austin subsequently filed a “Motion for the Allowance of Equitable Tolling and to Expendite [sic] the Administrative Grievance Process,” ap*782parently seeking to equitably toll the statute of limitations while he “exhausts and then re-file[s][his] case ... under a new civil action [number].... ”
In June 2008, the Magistrate Judge issued a report recommending that, in light of Austin’s failure to exhaust his administrative remedies, the court grant both motions to dismiss and deny Austin’s motion. In July 2008, the District Court adopted the report, denied Austin’s motion, and dismissed the complaint without prejudice. Austin now appeals the District Court’s judgment to this Court.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.2 We exercise plenary review over a district court’s decision to grant a motion to dismiss. See Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 242 (3d Cir.2008).
Under the PLRA, a prisoner must exhaust all available administrative remedies before raising claims under § 1983 concerning prison conditions. See 42 U.S.C. § 1997e(a). To meet this requirement, a prisoner must properly exhaust his administrative remedies. Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules....” Id, at 90-91, 126 S.Ct. 2378. A prisoner’s failure to exhaust is an affirmative defense, Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), and a defendant may, “in appropriate cases,” move to dismiss the complaint on that basis. Brown v. Croak, 312 F.3d 109, 111 (3d Cir.2002).
Under the DOC’s grievance procedure, an inmate must file a grievance with the Facility Grievance Coordinator within fifteen working days of the alleged event(s) at issue. See Pa. Dep’t of Corr. Policy Statement, DC-ADM 804, Part VI.A.8. Once a decision is issued, the inmate generally has ten working days to appeal to the prison’s Facility Manager. See id. at Part VT.C.l, 2. After the Facility Manager issues a decision, the inmate generally has fifteen working days to file a final appeal with the Office of Inmate Grievances and Appeals. See id. at Part VI.D.1.
In this case, Austin himself acknowledged that he had failed to complete the DOC’s grievance process, and the prison documents submitted with his complaint confirm his failure to properly exhaust his remedies. Indeed, Austin sought equitable tolling so that he could exhaust his administrative remedies. Accordingly, the District Court correctly dismissed Austin’s federal claims against the DOC Officials. Although Dr. Burke did not raise the issue of exhaustion in his separate motion to dismiss, the District Court did not err in dismissing the federal claims against him because it was clear from the complaint and accompanying documents that those claims were unexhausted. Cf. Ray v. Kertes, 285 F.3d 287, 293 n. 5 (3d Cir.2002) (noting that a district court may “dismiss sua sponte a complaint which facially violates a bar to suit”).
Having dismissed Austin’s federal claims, the court acted within its discretion in declining to exercise supplemental jurisdiction over his state law claim. See 28 U.S.C. § 1367(c)(3); Figueroa v. Bucca*783neer Hotel Inc., 188 F.3d 172, 181 (3d Cir.1999). Moreover, the District Court did not err in denying Austin’s request for equitable tolling, for he failed to demonstrate that such extraordinary relief is warranted here. See Santos v. United States, 559 F.3d 189, 197 (3d Cir.2009).3 Finally, we have considered the remaining arguments Austin raises in his brief and conclude that they are without merit.
In light of the above, we will affirm the District Court’s order granting Appellees’ respective motions to dismiss and denying Austin’s motion for equitable tolling. Austin’s request for appointment of counsel is denied.
. Austin is currendy incarcerated at the DOC's State Correctional Institution at Cresson.
. Although an order of dismissal generally must be with prejudice to be appealable, "a plaintiff can appeal from a dismissal without prejudice when he declares his intention to stand on his complaint or when he cannot cure the defect in his complaint.” Booth v. Churner, 206 F.3d 289, 293 n. 3 (3d Cir.2000). As noted below, Austin cannot cure the defect in his complaint because the time for exhausting his administrative remedies has long since passed. Accordingly, this appeal is properly before us.
. It appears that Austin now describes his motion for equitable tolling as a motion to stay the District Court proceeding pending the exhaustion of his administrative remedies. Even if (1) Austin's motion could be interpreted as seeking a stay and (2) he could go back and exhaust his remedies — the time for doing so, however, passed more than two years ago — such a motion would still lack merit. See Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir.2003) (recognizing that “many of our sister circuits [have held] that permitting exhaustion [while the lawsuit is pending] ... undermines the objectives of section 1997e(a) and that the [statute] ... clearly contemplates exhaustion prior to the commencement of the action ..., thus requiring an outright dismissal of such actions rather than issuing continuances so that exhaustion may occur").
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https://www.courtlistener.com/api/rest/v3/opinions/8474262/
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OPINION OF THE COURT
PER CURIAM.
Appellant Jose Miguel Perez, a Pennsylvania state prisoner, filed a civil rights action pursuant to 42 U.S.C. § 1983 in United States District Court for the Eastern District of Pennsylvania. He claimed that Lancaster County Court of Common Pleas Judge Michael A. Georgelis (now retired), former Lancaster County District Attorney Donald R. Totaro, and former Assistant District Attorney Cheryl Onde-check violated his constitutional rights during his 1992 trial when an informant testified against him in exchange for “economic benefits.” In his civil rights complaint, Perez sought a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (hearing required where defendant shows that false statement was included in search warrant affidavit, if false statement was necessary to finding of probable cause).
The defendants moved to dismiss the complaint. In an order entered on July 22, 2008, the District Court, noting that the motion to dismiss was unopposed, granted the defendants’ motion and dismissed the complaint on the basis of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because success in the action would call into question the validity of Perez’s conviction. The court found that Perez had not met Heck’s requirement that his conviction be invalidated through available state or federal remedies.
Perez filed a timely motion for reconsideration, in which he asserted that he had not had an opportunity to respond in opposition to the motion to dismiss through no fault of his own. The District Court then gave Perez the opportunity to submit briefs in opposition to the motion. Following the submission of the briefs, the District Court, in an order entered on October 10, 2008, denied Perez’s motion for reconsideration. The court determined that there was no error in its original decision and rejected Perez’s argument that his mere request for a Franks hearing would not call the validity of his conviction into question. The court explained: “the hearing that [Perez] requests is a forum in *790which he would prove that his conviction was invalid because the government presented false and misleading testimony against him at a suppression hearing and at trial.” The District Court did not agree that Bradley v. Pryor, 305 F.3d 1287 (11th Cir.2002), the case on which Perez relied, dictated a finding that Heck did not bar the suit because Bradley involved only the production of DNA evidence for testing. Perez appeals.
We will affirm. We have jurisdiction under 28 U.S.C. § 1291. A state prisoner’s section 1983 action is barred, no matter the relief sought, if success in that action would necessarily demonstrate the invalidity of his conviction. Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (citing Heck, 512 U.S. at 486-87, 114 S.Ct. 2364). Heck was based on the Supreme Court’s desire to prevent parallel litigation over the issues of probable cause and guilt. 512 U.S. at 484, 114 S.Ct. 2364. The Court sought to prevent the possibility of two conflicting resolutions arising out of the same successful prosecution, and preclude a convicted criminal defendant from collaterally attacking his conviction through the vehicle of a civil suit. See id. Therefore, as a prerequisite to a civil suit, the Court held that a plaintiff must prove that his conviction and sentence have been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court’s issuance of a writ of habeas corpus. See id. at 486-87, 114 S.Ct. 2364. A claim bearing the necessary relationship to a conviction or sentence that has not been invalidated is not cognizable. See id. at 487, 114 S.Ct. 2364.
The District Court properly determined that Heck applies to bar Perez’s civil rights action. He was convicted following a jury trial of three counts of possession with intent to distribute cocaine and one count of delivery of cocaine. Judge Georgelis sentenced him to a total term of imprisonment of 24 to 80 years imprisonment. The judgment of conviction and sentence has never been invalidated, and Perez does not suggest otherwise.1 Bradley, 305 F.3d 1287, notes that success in a section 1983 action seeking the production of evidence for DNA testing does not necessarily demonstrate or even imply that a conviction is invalid because it is not known whether the evidence is exculpatory or inculpatory, or even lost. Therefore, we agree with the District Court that Bradley is inapposite. Perez’s challenge to the truthfulness of an informant’s statements necessarily calls into question the validity of his conviction, because the informant’s statements in Perez’s case have already been established to be inculpatory. Cf. Wilkinson, 544 U.S. at 82, 125 S.Ct. 1242 (section 1983 remains available for procedural challenges where success in action would not necessarily spell immediate or speedier release).
We will affirm the District Court’s order granting the defendants’ motion and dismissing the complaint. The appellees’ motion to be excused from filing a brief is granted.
. The defendants asserted in their motion to dismiss that the Pennsylvania Superior Court affirmed on May 2, 1994. Perez filed three state post-conviction petitions, the last of which was filed on November 3, 2005, and all of the petitions were unsuccessful.
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https://www.courtlistener.com/api/rest/v3/opinions/8477224/
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ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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https://www.courtlistener.com/api/rest/v3/opinions/8474237/
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Appellant Eugene Chatman was convicted of trespass on Veterans Administration property, a violation of 18 Pa.C.S. § 3503 and the Assimilative Crimes Act. The District Court imposed no fines or costs, but did restrict Appellant’s presence on Veterans Administration grounds. The District Court’s restrictions permitted Chatman to enter Veterans Administration property solely for medical purposes and required him to have a police escort while on the grounds of Veterans Administration facilities. Chatman filed a motion to dismiss these restrictions alleging violations of his rights as a patient of the Veterans *741Administration and violations of his civil rights in general. The District Court refused to lift its restrictions and Chatman has filed an appeal, pro se. We will affirm.
Liberally construing his pro se brief, Chatman first argues that the restrictions imposed by the District Court constitute harassment and a denial of medical treatment. This argument is unsupported by the record. Furthermore, the District Court’s restrictions do not prevent Chatman from receiving medical treatment in any manner. This argument has no merit. Chatman also argues that the District Court’s restrictions violate his privacy rights under Article 12 of the Universal Declaration of Human Rights as adopted by the United Nations in 1948. This argument lacks merit because the Universal Declaration of Human Rights is a nonbinding declaration that provides no private rights of action. Sosa v. Alvarez-Machain, 542 U.S. 692, 734, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (explaining that Universal Declaration is simply a statement of principles and not a treaty or international agreement that would impose legal obligations.).
Next, Chatman quotes the Fourth Amendment to the Constitution, but makes no supporting argument to overcome his conviction and/or sentence. Although pro se briefs are afforded liberal construction, arguments must be briefed in order to be preserved. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Put another way, Chatman’s failure to identify an error is the same as if he had not appealed the judgment. See e.g. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Finally, Chatman makes a request for “punitive damages” because of alleged false imprisonment by the Veterans Administration authorities. We agree with the Government that this request for civil relief exceeds the bounds of a criminal appeal. We further find this request mer-itless and frivolous.
We will affirm the order of the District Court.
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https://www.courtlistener.com/api/rest/v3/opinions/8474239/
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Arthur Ishkhanian appeals the judgment of the United States District Court for the Eastern District of Pennsylvania imposing a sentence of 360 months imprisonment following his conviction for various methamphetamine-trafficking crimes. Ishkhanian pled guilty in accordance with a written plea agreement that contained a waiver of his appellate rights. He contends that the waiver is invalid and that we should consider his appeal because the District Court deferred to the prosecutor’s explanation of the waiver provision and did not independently ensure that he understood its scope and effect. For the reasons that follow, we will affirm.
I. Factual Background
On August 1, 2007, a grand jury returned a 107-count superceding indictment against Ishkhanian and fourteen co-defendants for, among other things, conspiracy to distribute methamphetamine, as well as offenses related to the possession and distribution of methamphetamine. Four months later, on November 30, 2007, Ish-khanian pled guilty to one count of distribution and two counts of possession with the intent to distribute in violation of 21 U.S.C. § 841. He also pled guilty to one count of conspiracy in violation of 21 U.S.C. § 846. The remaining counts were dismissed at sentencing.
Ishkhanian’s plea agreement contains a waiver of appellate rights that states, in pertinent part:
[T]he defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant’s conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law. This waiver is not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived.
... [Notwithstanding the waiver provision set forth in this paragraph, the defendant may file a direct appeal but may raise only claims that:
(1) the defendant’s sentence on any count of conviction exceeds the statutory maximum for that count ...;
*743(2) the sentencing judge erroneously departed upward pursuant to the Sentencing Guidelines;
(3) the sentencing judge, exercising the Court’s discretion pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), imposed an unreasonable sentence above the final Sentencing Guidelines ranges determined by the Court.
(App. at 23a.)
During the change-of-plea hearing, the District Court requested that the government summarize the provisions of the plea agreement. The prosecutor described the waiver in the agreement as follows:
Defendant has also agreed to waive all right to appeal or collaterally attack his conviction, sentence or any other matters relating to this prosecution, whether the right to appeal or collateral attack arises under 18 U.S.C. Section 3742, 28 U.S.C. Section 1291, 28 U.S.C. Section 2255, or any other provision of law.
(Id. at 34a.) The prosecutor also noted that the waiver did not bar Ishkhanian from asserting non-waivable constitutional claims. (Id.) The Court then conducted the following colloquy with Ishkhanian, defense counsel, and the prosecutor:
THE COURT: Mr. Labrum, you did go over his waiver of appeal rights?
PROSECUTOR: Yes, your Honor—
THE COURT: You mentioned—
PROSECUTOR: — it is set forth in Paragraph 9 of the guilty plea agreement.
THE COURT: Okay, all right. I think you did and I, therefore will not go over them again. Anything that I have overlooked?
DEFENSE COUNSEL: I don’t believe so, your Honor.
PROSECUTOR: No, your Honor.
THE COURT: Do you have any questions of the Court as to what you’re doing today?
THE DEFENDANT: No, sir.
(Id. at 39a.)
The Court ordered that a presentence investigation report be prepared, and a sentencing hearing was held approximately two years later, on January 16, 2009.1 At sentencing, the Court found that Ishkhani-an’s offense level under the United States Sentencing Guidelines was 40, his criminal history category was IV, and his Guidelines range was 360 months to life. Ish-khanian sought a variance below the Guidelines range because he had cooperated with government investigators2 and has two young children. On appeal, he also argues that a below-Guidelines sentence was necessary to avoid disparity between his sentence and those of his co-defendants. The Court rejected his request for a variance and sentenced him to a 360-month term of imprisonment on each count *744to which he pled guilty, all to run concurrently. This timely appeal followed.
II. Discussion3
Ishkhanian argues that the District Court’s sentence of 360 months was unreasonable and therefore runs afoul of 18 U.S.C. § 3553(a). This challenge plainly falls within the scope of the appellate waiver in his plea agreement. We must begin by evaluating whether that waiver forecloses his appellate attack on his sentence.
Waivers of appellate rights serve valuable functions in the criminal justice process. United States v. Khattak, 273 F.3d 557, 561-62 (3d Cir.2001). They provide a basis for plea bargaining between the government and criminal defendants, who often agree to a waiver in exchange for favorable sentences. Id. Prosecutors rely upon waivers to bring finality to the criminal process and to conserve prosecutorial resources. Id. We have upheld the validity of appellate waivers, though we have stated that they “should be strictly construed.” Id. at 562. We will give effect to a waiver only if “(1) ... the issues [the defendant] pursues on appeal fall within the scope of his appellate waiver and (2) ... he knowingly and voluntarily agreed to the appellate waiver, unless (3) enforcing the waiver would work a miscarriage of justice.” United States v. Corso, 549 F.3d 921, 927 (3d Cir.2008).
In the present matter, Ishkhanian argues that enforcement of the waiver in his plea agreement would result in a miscarriage of justice because the District Court allegedly failed to comply with Rule 11(b)(1)(N) of the Federal Rules of Criminal Procedure. Rule 11(b)(1)(N) imposes a duty upon a district court during a change-of-plea hearing to “address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Ishkhanian argues that the District Court in his case violated Rule 11(b)(1) when it permitted the prosecutor to summarize the terms of the appellate waiver and later asked him “whether [he] ha[d] any questions of the Court as to what [he was] doing today.” (App. at 39a.) Ishkhanian contends that the Court should have conducted a separate discussion regarding the terms of the appellate waiver and independently confirmed that he understood the effect of the waiver before accepting his plea. Ishkhanian did not at any time raise the alleged Rule 11 error before the District Court.
A defendant who raises a Rule 11 violation for the first time on appeal as a means of invalidating an appellate waiver must establish that the alleged infraction constitutes plain error. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (holding that a defendant who does not call a Rule 11 violation to the attention of the district court must “satisfy the plain-error rule”); Corso, 549 F.3d at 928 (requiring a defendant to show plain error before relying upon a Rule 11 violation to set aside a waiver of appellate rights). The defendant must show that the district court deviated from an established legal rule, that the error was clear or obvious, that the error affected the defendant’s substantial rights, and that a miscarriage of justice would result unless the error is righted. Corso, 549 F.3d at 928-29; United States v. Goodson, 544 *745F.3d 529, 539 (3d Cir.2008). Correction of plain error rests within the discretion of the reviewing court, and the last element of the analysis requires the defendant to persuade us that the error seriously impairs the “fairness, integrity, or public reputation of judicial proceedings.” Vonn, 535 U.S. at 63, 122 S.Ct. 1043 (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).
Ishkhanian has established the first two elements of the plain error analysis. Rule 11(b)(1)(N) requires a district court to “address the defendant personally!),] • • • inform the defendant of’ an appellate waiver, and “determine that the defendant understands” it. “[N]othing in the plain language of Rule 11(b)(1) permits a district court to delegate its responsibilities to ‘inform’ and ‘determine’ to the government; the Rule provides that ‘the court must’ do both of those things.”4 Corso, 549 F.3d at 929. The government concedes that the District Court’s reliance upon the prosecutor to describe the appellate waiver here was inappropriate under Rule 11. Accordingly, we conclude that Ishkhanian has satisfied the first two elements of the plain error test.
The third element of the test requires Ishkhanian to show that the error affected his substantial rights. Id. A deviation from our Rule 11(b)(1) precedents affects the substantial rights of a defendant seeking to appeal his sentence if there is a reasonable probability that the aberration “precluded him from understanding that he had a right to appeal and that he had substantially agreed to give up that right.” Id. (citing Goodson, 544 F.3d at 541). The reasonable probability burden is less onerous than the preponderance of the evidence standard, and it imposes upon the defendant the burden of producing evidence that calls into question the outcome of the proceedings. See, e.g., Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (defining reasonable probability standard in the context of violations of United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)); United States v. Dominguez Beni-*746tez, 542 U.S. 74, 83 & n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (stating that the reasonable probability standard articulated in Kyles provides the appropriate standard of review for violations of Rule 11); Corso, 549 F.3d at 930 (applying the reasonable probability standard to determine whether a district court’s failure to comply with Rule 11(b)(1)(N) rendered a defendant’s waiver of appellate rights invalid).
In the present ease, Ishkhanian has not shown a reasonable probability that the District Court’s Rule 11 error prevented him from understanding the effect and breadth of his appellate waiver. Ishkhani-an has a tenth grade education and is fluent in the English language. He reviewed the entire plea agreement with his counsel prior to the guilty plea hearing, and he executed an attached acknowledgment of rights, which indicated that the agreement contained an appellate waiver. He informed the Court at the outset of the change-of-plea hearing that he understood the contents of his plea agreement. During the hearing, the prosecutor explained the waiver, which covered all rights on direct appeal and collateral attack regardless of the statutory source from which they arose. Later in the same hearing, the Court mentioned the waiver a second time, asking whether the prosecutor had covered Ishkhanian’s appellate rights. The prosecutor responded in the affirmative. The Court then asked both counsel whether the Court had overlooked any essential terms of the agreement, and both responded that they were prepared for imposition of a sentence. Lastly, the Court asked Ishkhanian whether he “ha[d] any questions of the Court as to what [he was] doing today?” (App. at 39a.) Ish-khanian responded: “No, sir.” (Id.) He did not request clarification about the waiver or any other provision of the plea agreement.
In total, Ishkhanian was informed of the waiver on at least four separate occasions: once when reviewing the plea agreement with counsel, once when executing the acknowledgment attached thereto, and twice during his change-of-plea hearing. Under these circumstances, we cannot conclude that the District Court’s technically inadequate Rule 11 colloquy impaired Ishkhani-an’s ability to understand the effect and scope of the waiver. See Goodson, 544 F.3d at 541 (finding that the district court’s failure to speak with defendant about an appellate waiver did not affect his substantial rights because the prosecutor explained the waiver during the change-of-plea hearing and the court confirmed that defendant understood the prosecutor’s explanation). The District Court’s Rule 11 misstep did not affect Ishkhanian’s substantial rights, and his plain error argument fails as a result.
Assuming for the sake of argument, however, that the District Court’s error did affect Ishkhanian’s substantial rights, we would nonetheless affirm the judgment because Ishkhanian has failed to demonstrate that enforcement of the waiver would work a miscarriage of justice. A miscarriage of justice typically involves “unusual circumstance[s],” Khattak, 273 F.3d at 562, and arises from “egregious errors” of the district court, Corso, 549 F.3d at 931 (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). We evaluate an alleged miscarriage of justice by looking to *747Khattak, 273 F.3d at 562 (quoting United States v. Teeter, 257 F.3d 14, 26 (1st Cir. 2001)). In this case, the Court’s failure to question Ishkhanian about the waiver was a relatively minor error. The prosecutor discussed the plea agreement’s salient provisions, and the record indicates that the waiver’s effect and scope were readily ascertainable to Ishkhanian through review of the agreement, discussions with counsel, and the colloquy with the Court. Under the circumstances of this case, Ishkhani-an’s waiver does not amount to a miscarriage of justice.
*746[t]he clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result.
*747III. Conclusion
Ishkhanian has failed to show that the District Court’s oversight of one aspect of the requirements of Rule 11 affected his substantial rights or that enforcing the waiver in his plea agreement would result in a miscarriage of justice. The shortcomings he ascribes to the District Court do not constitute plain error, and he may not invoke them for the first time on appeal to invalidate the waiver of his appellate rights. We will enforce that waiver and decline to consider his challenge to the reasonableness of his sentence. Accordingly, we will affirm the judgment of the District Court.
. The delay between the change-of-plea hearing and the sentencing hearing resulted from an unsuccessful attempt by Ishkhanian to flee from law enforcement authorities. The District Court initially granted him pre-sentenc-ing release under the Bail Reform Act of 1984 but later revoked his bail and instructed him to self-surrender on February 4, 2008. He failed to report and was apprehended approximately four months later in Pensacola, Florida, after producing a false identification card and falsely identifying himself to United States Marshals.
. The plea agreement recognized that Ishkha-nian had assisted the government with its investigation of his co-conspirators and stated that the government could, in its discretion, request a downward departure under § 5K1.1 of the Sentencing Guidelines or a downward variance under 18 U.S.C. § 3553(e) and Rule 35 of the Federal Rules of Criminal Procedure. The government declined to move for a below-Guidelines sentence in light of Ishkha-nian’s flight from justice. See supra note 1.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir.2007) (holding that defendant’s waiver of appellate rights does not divest court of appeals of jurisdiction to hear an appeal).
. Our Rule 11 precedents impose a staunch obligation upon the district court to conduct a personal discussion with defendant about each item enumerated in the rule. In United States v. Goodson, the district court requested that the prosecutor summarize an appellate waiver in the defendant's plea agreement. 544 F.3d at 532. The court asked the defendant whether he understood the waiver following the prosecutor's explanation and again before the defendant entered a guilty plea. Id. We held that the court's inquiry fell short of the requirements of Rule 11:
[T]he District Court relied upon the prosecutor's recitation of the terms of the appellate waiver to fulfill its obligation to inform the defendant of the specifics of the waiver provision. This was error. Although the Court did ask [the defendant] personally whether he understood that he had given up substantial appellate rights, we cannot ignore that there was no effort to verify that [the defendant] understood the breadth of the waiver-or to underscore the fact that the waiver meant that, subject to three very narrow exceptions, [the defendant] was giving up the right to appeal both the validity of his plea and the legality of his sentence. This too was error.
Id. at 540. We do not understand Goodson and Corso to restrict individuals other than the district judge from discussing a defendant's appellate waiver during a change-of-plea colloquy. Input from the prosecutor and defense counsel may aid the defendant’s understanding of his or her plea agreement, and it is entirely legitimate for a district court to involve others in the process of accepting a guilty plea. However, participation by counsel does not excuse the district court from independently ensuring that the defendant understands the scope and effect of the waiver. The court need not repeat every matter that counsel has covered in detail, but a careful judge will personally engage the defendant in questioning of sufficient detail — beyond a single "do you understand” inquiry — to ensure that the defendant truly does understand the nature, scope, and effect of the rights being waived.
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Appellant Jeanne S. Di Loreto appeals from a February 19, 2009 order of the United States District Court for the Eastern District of Pennsylvania dismissing her complaints in two civil actions. She also appeals from an August 29, 2008 order of the District Court refusing to remand her cases to the Court of Common Pleas. For the following reasons, we will affirm.
I. Background
Mrs. Di Loreto and her husband controlled Ardra Insurance Company Ltd. (“Ardra”), which purportedly provided reinsurance coverage for another company called Nassau Insurance Company (“Nassau”). Nassau was at one time presided over by Mr. Di Loreto as President, but it went into liquidation under the authority of the Insurance Department of the State of New York (“NYSID”). Shortly thereafter, in 1985, the NYSID Superintendent, in his capacity as Nassau’s Liquidator, sued Ardra in New York state court for reinsurance moneys owed to Nassau. In the same suit, he sought recovery from the Di Loretos in their individual capacities, on the theory that Ardra was their alter ego. William Costigan was the attorney representing the Liquidator throughout those proceedings. The Di Loretos were represented by attorneys from the Philadelphia office of the law firm Pepper Hamilton, LLP.
The Liquidator finally prevailed at trial in April of 2002, obtaining a judgment for approximately $20 million (the “New York judgment”), and he also prevailed on appeal.1 Serio v. Ardra Ins. Co., 100 N.Y.2d *749516, 769 N.Y.S.2d 202, 801 N.E.2d 423 (N.Y.2003) (denying leave to appeal); Serio v. Ardra Ins. Co., 100 N.Y.2d 576, 764 N.Y.S.2d 385, 796 N.E.2d 477 (N.Y.2003) (dismissing appeal). He then filed the New York judgment in Chester County, Pennsylvania, as a lien against property that the Di Loretos owned there, though he did not then seek to execute on the lien.
In 2005, Mrs. Di Loreto, unhappy with the outcome of the New York litigation, sued Pepper Hamilton. She filed the malpractice action in the Court of Common Pleas of Philadelphia County, and her lawyer in that case discussed with the Liquidator the possibility of satisfying the New York judgment out of the proceeds of the recovery Mrs. Di Loreto hoped to obtain from Pepper Hamilton. Some time after that, the Liquidator sought to execute on the Chester County lien through a sheriffs sale, and also attempted to garnish any proceeds from Mrs. Di Loreto’s malpractice suit.
Mrs. Di Loreto succeeded in having the sheriffs sale stayed pending the resolution of the malpractice suit. However, when the suit settled, progress towards a final resolution of the Liquidator’s claims against Ardra and the Di Loretos hit another delay when Pepper Hamilton refused to disburse the settlement moneys because of the garnishment. There were further moves and countermoves in the Liquidator’s effort to collect against Mrs. Di Loreto, which culminated in the filing by Mrs. Di Loreto of two essentially identical lawsuits in Pennsylvania, one in the Court of Common Pleas for Philadelphia County (the “Philadelphia lawsuit”) and one in the Court of Common Pleas of Chester County (the “Chester County lawsuit”), naming as defendants the appellees in the present appeal, who are certain employees of the NYSID (“NYSID employees”) and Costi-gan. The Chester County lawsuit included the NYSID itself as a defendant, and the NYSID is also an appellee in the present matter.
Mrs. Di Loreto’s substantively identical complaints sought to prevent execution on the New York judgment because, she said, it “was obtained in violation of [her] due process rights.” (App. at 2a-3a, 345a.) She also sought compensatory and punitive damages. The complaints assert the following claims: (1) a claim pursuant to 42 U.S.C. § 1983 for violation of Mrs. Di Lor-eto’s due process rights, based on Appel-lees’ procurement of the allegedly defective New York judgment; (2) a § 1983 claim for violation of Mrs. Di Loreto’s equal protection rights; (3) a claim for abuse of process, based on, among other things, the filing of the garnishment suit for the alleged purpose of harassing Mrs. Di Loreto and pressuring her into settlement; (4) a claim for intentional infliction of emotional distress; and (5) a claim for declaratory judgment that the New York judgment is invalid.
On January 25, 2008, Mrs. Di Loreto initiated the Chester County lawsuit by filing a summons and a complaint. Two of the NYSID employees and the NYSID itself were served on January 29, 2008, and the remaining NYSID employee was served on February 11, 2008. Those defendants had also been served with the Philadelphia lawsuit as of the same dates. Di Loreto attempted to serve Costigan in the Chester County lawsuit by serving an attorney who had entered an appearance on his behalf in the Philadelphia lawsuit, but the attorney refused to accept service for Costigan.
On February 26, 2008, Costigan emailed counsel for Mrs. Di Loreto stating:
*750I refer to the Philadelphia and Chester County actions you have commenced on behalf of Jeanne S. DiLoreto against me and other defendants. I understand you have asked [my attorney] to accept service on my behalf. Be advised that I will be appearing pro se in the cases and that I acknowledge service of both complaints effective today. I[sic] you require something more formal, just send it to me.
(App. at 930a.) That same day, the NY-SID employees removed both cases to federal court pursuant to 28 U.S.C. § 1441. Although both notices of removal asserted that all defendants had consented to removal, neither notice included proof of Costigan’s consent, and the Chester County notice did not include proof of the NY-SID’s consent.
On March 7, 2008, Mrs. Di Loreto’s counsel sent Costigan a letter enclosing an acceptance of service form for Costigan to complete “as a more formal record that [he had] officially been served.” (App. at 931a.) On March 27, 2008 Di Loreto filed motions to remand both cases to the state courts. Four days later, on March 31, 2008, Costigan signed the acceptance of service form and returned it to counsel. He also filed a “consent to removal” in the Philadelphia lawsuit and a notice of removal in the Chester County lawsuit which included as an exhibit the NYSID and NYSID employees’ consent to removal.
After much argument from the parties, the District Court denied the motions to remand. With respect to the Chester County lawsuit, the District Court concluded that Costigan did not waive service until he signed the acceptance of service form. The Court further decided that the matter had been properly removed because Costigan was the last defendant served and his notice of removal was timely, as measured from the time he was served. As to the Philadelphia lawsuit, the District Court concluded that the NYSID employees properly removed the case because Costigan had not been served with the complaint at the time the NYSID employees petitioned for removal, rendering his consent unnecessary.
While the motions to remand were outstanding, the NYSID employees and Costi-gan filed separate motions to dismiss the Philadelphia and Chester County lawsuits. The NYSID also moved to dismiss the Chester County lawsuit. The District Court ultimately dismissed both actions, concluding that it lacked personal jurisdiction over the NYSID and the Liquidator to the extent he was sued in his official capacity, that it lacked personal jurisdiction over Costigan, that the New York judgment was entitled to full faith and credit, which precluded Mrs. Di Loreto’s due process claim, and that Mrs. Di Loreto failed to state a claim on all remaining counts.2 Mrs. Di Loreto timely appealed.
II. Discussion3
On appeal, Mrs. Di Loreto challenges the District Court’s refusal to remand the Chester County lawsuit to the Court of Common Pleas.4 She further asserts that *751the District Court’s conclusions that it lacked personal jurisdiction over the NY-SID and Costigan were erroneous. Finally, she contends that the District court erred in extending full faith and credit to the New York judgment, thereby disposing of her due process claim.5 We agree with the District Court that Costigaris notice of removal was timely filed and that the removal of the Chester County lawsuit was therefore appropriate. We further conclude that Mrs. Di Loreto’s due process claim was properly dismissed because the New York judgment is entitled to full faith and credit.6
A. The Chester County Lawsuit was Properly Removed
We exercise plenary review over a district court’s determination that removal was proper. Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 219 (3d Cir.2005). A notice of removal in a civil action must be filed “within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based....” 28 U.S.C. § 1446(b). In Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., the Supreme Court interpreted this provision to mean that “a named defendant’s time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, ‘through service or otherwise,’ after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service.” 526 U.S. 344, 347-48, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999). Thus, the removal period for a defendant does not begin to run until that defendant is properly served or until that defendant waives service. See id. at 350, 119 S.Ct. 1322 (“In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a *752party the complaint names as a defendant.”)
When there is more than one defendant, the “rule of unanimity” requires that all defendants consent to the removal. Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir.1985). Moreover, it has been accepted that “the last-served defendant may remove within thirty (30) days of service, and other defendants may consent to the later-served Defendant’s removal even if their own removal periods have expired.” Cmiech v. Electrolux Home Prods., Inc., 520 F.Supp.2d 671, 676 (M.D.Pa.2007).7 The parties do not challenge the application of this “last-served defendant” rule by the District Court.
Since Costigan was never officially served in accordance with the Pennsylvania Rules of Civil Procedure, we must determine when he waived service so as to trigger his removal period. See Fleehr v. Mummert, 857 A.2d 683, 685 (Pa.Super.Ct.2004) (“[Effective service of process may be obtained through waiver or consent.”). Di Loreto asserts that Costi-gan’s February 26, 2008 email constituted a waiver of service, rendering untimely his removal of the matter more than thirty days later. Appellees assert that the District Court correctly concluded that waiver of service did not occur until March 31, 2008, when Costigan signed and returned the acceptance of service form sent to him by counsel for Mrs. Di Loreto.
Pennsylvania Rule of Civil Procedure 402(b) allows a defendant or his agent to waive service of process by completing an acceptance of service form. A defendant may also waive process if he “manifests an intent to submit to the court’s jurisdiction • • • [by] tak[ing] ‘some action (beyond merely entering a written appearance) going to the merits of the case, which evidences an intent to forego objection to the defective service.’ ” Fleehr, 857 A.2d at 685 (quoting Cathcart v. Keene Indus. Insulation, 324 Pa.Super. 123, 471 A.2d 493, 499 (1984)). For example, in Fleehr v. Mummert, the Pennsylvania Superior Court concluded that defense counsel’s appearance in court on a motion to consolidate the plaintiffs case with a related arbitration evidenced the defendant’s intent to waive formal process and submit to the court’s jurisdiction. 857 A.2d at 685 (“Counsel’s actions were taken on Appellant’s behalf and must be seen as a recognition of the ... complaint, for absent such there was nothing to consolidate.”).
*753By contrast, in Cmiech v. Electrolux Home Products, Inc., counsel for plaintiff sent an acceptance of service form to defense counsel, but never followed up on the matter. 520 F.Supp.2d at 673, 676. Thereafter, defense counsel engaged in discussions with plaintiffs counsel regarding extensions of time and, according to the plaintiff, represented that they had authority to accept service for the defendant in question. Id. at 673. The District Court concluded that, despite counsels’ discussions, service was not waived until defense counsel completed the acceptance of service form. See id. at 676. Since counsels’ behavior was directed at plaintiffs counsel, and not at the court itself as in Fleehr, it was insufficient to waive service. 520 F.Supp.2d at 675.
Although Costigan’s email message of February 26, 2008 can be read as evincing an intent to forego an objection to formal service, we cannot say that the District Court erred in concluding that the email was insufficient to constitute a waiver of service. Costigan’s informal email does not mention anything regarding the merits of the Philadelphia lawsuit or Chester County lawsuit. In addition, as in Cmiech, Costigan was not interacting with the court so as to permit an inference that he was submitting to the court’s jurisdiction without challenge. Accordingly, the first clear indication that Costigan would forego any challenge to the defective service was when he signed the acceptance of service form on March 31, 2008. Since he removed the Chester County lawsuit to federal court that same day, with proof of the other defendants’ consent, removal was proper under the last-served defendant rule.
B. The New York Judgment is Enforceable
On appeal, Mrs. Di Loreto challenges the dismissal of her due process claim, asserting that, when the District Court concluded that the New York judgment is entitled to full faith and credit, it “fail[ed] to examine the circumstances surrounding the New York Judgment and fail[ed] to give Mrs. Di Loreto all reasonable inferences in her favor.” (Appellant’s Op. Br. at 36.) A court confronted with a Rule 12(b)(6) motion must accept the truth of all factual allegations in the complaint and must draw all reasonable inferences in favor of the non-movant. Gross v. German Found. Indus. Initiative, 549 F.3d 605, 610 (3d Cir.2008). In determining whether dismissal is appropriate, the court may consider exhibits attached to the complaint and matters of public record. Pension Ben. Guaranty Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1197 (3d Cir. 1993). “We exercise plenary review over a district court’s decision to grant a motion to dismiss.... ” DeHart v. Horn, 390 F.3d 262 (3d Cir.2004).
The key question is whether there is any flaw in the New York judgment that gives rise to a due process claim, for, in the absence of such a flaw, we “must give the same preclusive effect to a state court judgment as another court of that state would.... ” Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 141 (3d Cir.1999); see also 28 U.S.C. § 1738; Kremer v. Chem. Const. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) (“Section 1738 requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.”). “Due process requires that a party have a full and fair opportunity to litigate their case.” Peduto v. City of N. Wildwood, 878 F.2d 725, 728 (3d Cir.1989) (citing Kremer, 456 U.S. at 480-81, 102 S.Ct. 1883). Although the requirements of due process are context-specific, due process is generally comprised of:
*754(1) notice of the basis of the governmental action; (2) a neutral arbiter; (3) an opportunity to make an oral presentation; (4) a means of presenting evidence; (5) an opportunity to cross-examine witnesses or to respond to written evidence; (6) the right to be represented by counsel; and (7) a decision based on the record with a statement of reasons for the result.
Rogin v. Bensalem Twp., 616 F.2d 680, 694 (3d Cir.1980).
Mrs. Di Loreto does not complain that New York state court procedures, or a lack thereof, failed to provide her the protections safeguarded by the Due Process clause of the United States Constitution. She instead argues that the New York judgment was rendered without due process because “the Liquidator brought a lawsuit against [her] with virtually no evidence,” and because “the case was decided by an unconstitutionally defective jury, ... defended by a negligent attorney who was representing both Di Loretos, and ... was pursued by a manipulative prosecutor.” (Appellant’s Op. Br. at 38.) According to Mrs. Di Loreto, the District Court’s failure to account for these factors rendered erroneous its conclusion that the judgment was enforceable.
Despite those protestations, we find no error in the District Court’s analysis. Mrs. Di Loreto had a full and fair opportunity to defend against the Liquidator’s claims. Her complaints and the attached exhibits conclusively establish that she was represented by counsel, had an opportunity to conduct discovery and present evidence and argument at trial, received a trial before a neutral judge and jury, and had the opportunity to challenge the jury’s verdict on appeal with the assistance of counsel. Moreover, on appeal to the Appellate Division of the New York Supreme Court, Mrs. Di Loreto argued for reversal of the judgment on grounds that there was insufficient evidence against her and that only six of eight jurors had rendered the verdict — the very arguments she advances in this case. The Appellate Division reviewed the record and considered those arguments, concluding that sufficient evidence supported the judgment and that Mrs. Di Loreto had waived any objection to the manner in which the verdict was rendered. In short, the New York proceedings bear all of the hallmarks of due process. That Mrs. Di Loreto lost her case does not mean her constitutional rights were violated.8
Her assertions to the contrary notwithstanding, it is clear that Mrs. Di Loreto seeks to use the present proceedings as a vehicle for rearguing claims that have been extensively litigated in New York and fairly passed upon by the courts of that state. As is evident from the voluminous attachments to her complaints in the Philadel*755phia lawsuit and the Chester County lawsuit, including deposition testimony and trial transcripts from the New York litigation, Mrs. Di Loreto is inviting us to function as a state appellate court and overturn the New York judgment. That, however, is something we cannot do. Cf. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) (complaints that “invite[] federal courts of first instance to review and reverse unfavorable state-court judgments” are “out of bounds”).
Mrs. Di Loreto has had over two decades of legal process that more than comports with the dictates of our Constitution. The New York judgment is enforceable,9 which requires us to affirm the District Court’s dismissal of the removed cases. We therefore need not address the remaining arguments on appeal.
III. Conclusion
Costigan’s notice of removal was timely filed and the Chester County lawsuit was therefore properly removed pursuant to the last-served defendant rule. The New York judgment was not procured in violation of Mrs. Di Loreto’s due process rights and it is therefore entitled to full faith and credit. Accordingly, we will affirm the judgment of the District Court.
. At trial, the jury deadlocked on the issue of Mrs. Di Loreto’s liability. The trial judge determined that once six of the eight deliberating jurors reached agreement, their decision would constitute the jury’s verdict on the claims against Mrs. Di Loreto. On appeal, Mrs. Di Loreto asserted that the verdict was rendered by a constitutionally defective jury because the New York constitution requires agreement of at least five-sixths of the jurors deliberating to render a civil verdict and six out of eight jurors equals less than five-sixths. N.Y. Const. Art. 1, § 2 (“The legislature may provide ... that a verdict may be rendered by not less than five-sixths of the jury in any civil case.’’); NY. C.P.L.R. 4113 (“A verdict may be rendered by not less than five-sixths of the jurors constituting a jury."). The Appellate Division of the New York Supreme Court concluded that the argument was waived saying "[t]he record discloses that the [Di Lore-tos] consented to a verdict rendered by six of eight jurors.” (App. at 281a.) The Appellate Division also affirmed the judgment, concluding that “the proof showed that the DiLore-*749tos, through their control of Ardra, deprived it of the funds needed to meet its reinsurance obligations.” (App. at 281a.)
. Although it did not explicitly say so, the District Court's conclusion that the New York judgment is valid clearly disposed of Mrs. Di Loreto's request for declaratory judgment in addition to her due process claim.
. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1332. Jurisdiction also depended upon the validity of removal, which is discussed herein. Our jurisdiction is based on 28 U.S.C. § 1291.
.In her opening brief, Mrs. Di Loreto asserts that the District Court’s refusal to remand was erroneous, however, she only discusses the Court’s analysis with respect to the Chester County lawsuit. Accordingly, she has waived any arguments as to the Philadelphia lawsuit, despite her attempts to revive them in *751her reply brief. See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a party raises it in its opening brief, and for those purposes a passing reference to an issue ... will not suffice to bring that issue before this court.”) (internal quotations omitted).
. Mrs. Di Loreto does not appeal the District Court’s dismissal of her equal protection claim, which asserted that Costigan pursued the Liquidator’s claim against Mrs. Di Loreto “based on her status as a woman,” nor does she appeal the dismissal of her intentional infliction of emotional distress claim. (App. at 24a-25a, 368a.) In addition, although she vaguely references her abuse of process claim in her discussion of the District Court’s analysis of its personal jurisdiction over Costigan, she does not confront the Court's dismissal of that claim. Thus, she has also waived that issue on appeal.
. “[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction)." Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). In this case, two of the five defendants — the NYSID and Costigan — asserted lack of personal jurisdiction as a defense to Mrs. Di Loreto’s lawsuits. Since we have jurisdiction over the remaining three defendants, we can dispose of these matters without addressing personal jurisdiction as to the other two, as we would have to address the merits of Mrs. Di Loreto’s claims regardless of our jurisdiction over the NYSID and Costigan. See Philbrook v. Glodgett, 421 U.S. 707, 721-22, 95 S.Ct. 1893, 44 L.Ed.2d 525 (1975) (declining to address jurisdictional issue because "the substantive issue decided by the District Court would have been decided by that court even if it had concluded that the Secretary was not properly a party to the suit, since appellant Philbrook was clearly a proper party ... and the statutory issues raised by appellees' claim against Philbrook were indistinguishable from those raised by their claim against the Secretary."), superseded by statute on other grounds, Unemployment Compensation Amendments of 1976, Pub.L. 94-566, 90 Stat. 2667.
. Although the law is not entirely settled, recent authority supports the last-served defendant rule. See, e.g., Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1205 (11th Cir. 2008) (noting, in adopting the rule, that “the trend in recent case law favors the last-served defendant rule”); Marano Enters. of Ks. v. Z-Teca Restaurants, L.P., 254 F.3d 753, 757 (8th Cir.2001) ("We hold that the later-served defendants in this case had thirty days from the date of service on them to file a notice of removal with the unanimous consent of their co-defendants, even though the first-served co-defendants did not file a notice of removal within thirty days of service on them.”); Briefly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th Cir. 1999) ("[W]e hold that a later-served defendant has 30 days from the date of seivice to remove a case to federal district court, with the consent of the remaining defendants.”) (footnote omitted); Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure § 3731 (4th ed. 2009) ("Other courts of appeals, as well as many district courts, also now have rejected the first served defendant rule in construing Section 1446(b)”) (footnotes omitted). In addition to Cmiech, other decisions from courts in our circuit have followed this approach. See Shadie v. Aventis Pasteur, Inc., 254 F.Supp.2d 509, 515 (M.D.Pa.2003) (adopting last-served defendant rule); Orlick v. J.D. Carton & Son, Inc., 144 F.Supp.2d 337, 343 (D.NJ.2001) (same). The parties in this case accept that the rule is applicable and, while we will leave a definitive decision on the issue for another day, for purposes of this case at least, we agree.
. Furthermore, whether Mrs. Di Loreto's attorneys were negligent in representing her in the New York action — a matter as to which we neither state nor imply any conclusion at all — has no bearing on the validity of the judgment against her. There is no right to effective assistance of counsel in a civil case, as there is in a criminal case. See Kushner v. Winterthur Swiss Ins. Co., 620 F.2d 404, 408 (3d Cir.1980) (“An aggrieved party in a civil case, involving only private litigants unlike a defendant in a criminal case, does not have a constitutional right to the effective assistance of counsel. The remedy in a civil case, in which chosen counsel is negligent, is an action for malpractice.”) (internal quotations omitted). Mrs. Di Loreto had and took the opportunity to sue her attorneys for legal malpractice. Her settlement of that claim compensates her to the extent that any malpractice might have tainted the New York proceedings. Also irrelevant is the fact that the Liquidator vigorously pursued his case against Mrs. Di Loreto. The Liquidator was entitled to prosecute a legitimate claim to the extent provided by the law and subject to the rulings of the trial judge.
. Even if Mrs. Di Loreto had preserved her abuse of process claim on appeal, our conclusion that the New York judgment is valid would also dispose of that claim, since use of process for a legitimate reason — to secure collection on a valid judgment — does not constitute abuse of process. See Rosen v. Am. Bank of Rolla, 426 Pa.Super. 376, 627 A.2d 190, 193-94 (1993) (bank's subpoena of plaintiff during discovery in aid of execution on a valid judgment did not constitute abuse of process, regardless of whether subpoena was properly served, because plaintiff had information relevant to bank’s attempt to execute).
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the judgment of conviction and sentence.
Stevey was convicted of Bank Robbery, 18 U.S.C. § 2113(a), Armed Bank Robbery, 18 U.S.C. § 2113(d), and Using or Brandishing a Firearm during Commission of a Crime of Violence, 18 U.S.C. § 924(c) (A) (ii), all arising from the robbery of two banks. The District Court sentenced Stevey to a total term of imprisonment of 439 months, and restitution in the amount of $27,925.00.
A conviction may be overturned “[o]nly when the record contains no evidence, regardless of how it is weighted, from which the jury could find guilt beyond a reasonable doubt.” United States v. McNeill, 887 F.2d 448, 450 (3d Cir.1989).
Stevey does not challenge the sufficiency of evidence that two armed robberies took place. Stevey does claim, however, that the evidence was insufficient to establish that he participated in the robbery at either the Irwin Bank and Trust or the Parkvale Savings Bank.
With regard to the convictions on charges arising from the Irwin Bank robbery, the testimony of Stevey’s accomplice implicated him for being involved in discussions about the robbery the night before, and also as the one who selected the bank. A jailhouse informant testified that Stevey admitted his involvement in the Irwin Bank robbery and that they used a gun obtained in a burglary. The gun was later found in the house in which Stevey stayed while in that area and the burglary occurred at a nearby house. Finally, evidence indicated that Stevey spent some of *764the money obtained in the robbery on the same day as the crime.
Our review of the record leads us to conclude that the jury was properly instructed on how to evaluate the testimony of the informant. For all of these reasons, we find that there is no question that the jury’s decision to convict Stevey on the three counts related to this armed robbery was substantially supported by the evidence.
With regard to the Parkvale Savings Bank, the same jailhouse informant testified to Stevey’s admission of involvement in this crime. Again, the jury was properly instructed on how to evaluate the informant’s testimony. Additionally, the government provided a host of circumstantial evidence, ranging from cell phone records to the testimony of an eyewitness who identified Stevey as one of the men she saw shortly after the robbery in one of the cars associated with the crime. We conclude that the record substantially supports the jury’s decision to convict Stevey on the charges related to this armed robbery.
Finally, with regard to Stevey’s appeal for a new trial based upon Rule 33 of the Federal Rules of Criminal Procedure, we note that no such post-verdict motion was made before the District Court. Hence, we cannot consider it.
For all of these reasons, we will affirm the judgment of conviction and sentence of the District Court.
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OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Charles Lobel appeals from a judgment of the District Court dismissing his amended complaint pursuant to the False Claims Act, 81 U.S.C. § 3729, for failure to state a claim. We will affirm.
I.
Because we write for the parties, we recount only the essential facts. Lobel was employed as a pharmacist by Defendant Express Scripts, Inc. (ESI). ESI is an independent pharmacy benefit manager that provided mail order prescriptions to participants in the Department of Defense’s TRICARE health program. Following his termination in May 2005, Lobel sued ESI claiming the company failed to comply with 21 C.F.R. § 1306.05, which requires that all prescriptions for controlled substances be dated, signed, and bear the registration number of the medical practitioner.
After the Government declined to intervene in the case, ESI moved to dismiss Lobel’s amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The District Court granted ESI’s motion and Lobel filed this timely appeal, claiming that his amended complaint adequately pleaded violations of sections 3729(a)(l)-(2) of the False Claims Act under theories of express and implied certification.1
II.
As both parties correctly note, to state a claim for false certification of compliance with a regulation, a relator under the False Claims Act must allege that: (1) defendant violated the regulation; (2) defendant certified its compliance with the regulation to a federal payor in spite of its violation of the regulation; and (3) defendant’s certification of compliance was a condition of payment. Rodriguez v. Our Lady of Lourdes Med. Ctr., 552 F.3d 297, 304 (3d Cir.2008). In considering Lobel’s express and implied certification claims in this appeal, we focus on the third factor.
We reject Lobel’s express certification claim out of hand. His amended complaint fails to identify a single claim submitted by ESI in which it represented falsely to the Government that it complied with regulations that affect its eligibility for payment. This is plainly insufficient under Rodriguez. See id. at 303.
Although not as specious as his express certification claim, Lobel’s implied certification argument suffers from obvious defects. First, Lobel challenges the District Court’s judgment by relying upon the incorrect legal standard. At pages 9, 10, and 20 of his brief, Lobel relies on the Supreme Court’s decision in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). As ESI rightly counters, the Supreme Court overruled Conley in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Moreover, as the Supreme Court made clear last term: “bare assertions,” “legal conclusions,” and “formulaic recitationfs] of the elements of a cause of action” *780are “not entitled to the assumption of truth.” Ashcroft v. Iqbal, — U.S. —, —-—, 129 S.Ct. 1937, 1950-51, 173 L.Ed.2d 868 (2009). Lobel’s failure even to cite Twombly and Iqbal in either of his two briefs is a telling omission. When Lobel’s amended complaint is analyzed under the more exacting standard established by those cases, it falls well short.
Lobel cites seven paragraphs of his amended complaint to support his argument that he stated a claim upon which relief may be granted. Two of these seven paragraphs — paragraphs 18 and 24— merely quote the False Claims Act and 21 C.F.R. § 1306.05. Four other paragraphs — paragraphs 17, 25, 26, and 27— allege in conclusory fashion that ESI violated the False Claims Act by submitting claims for prescriptions filled in violation of § 1306.05. Under Iqbal, these concluso-ry allegations are not presumed to be true. 129 S.Ct. at 1950. Likewise, paragraph 28, which alleges materiality, is a legal conclusion which the District Court was not obliged to accept as true. Id. at 1949.2 In addition to these factual deficiencies, after reviewing the record, we agree with ESI that the violation of § 1306.05 Lobel alleges cannot, as a matter of law, give rise to liability under the False Claims Act because compliance with the regulation is not a “condition of payment.” See Rodriguez, 552 F.3d at 304.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The District Court had jurisdiction under 28 U.S.C. § 1331 and 31 U.S.C. § 3732(a). We have jurisdiction under 28 U.S.C. § 1291.
. In his Reply Brief, Lobel argues for the first time that the Fraud Enforcement and Recovery Act of 2009 has changed the standard. It is well established that arguments not raised in an appellant’s opening brief are waived. See, e.g., United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005). Even had this argument not been waived, it suffers from the same defect as the argument we rejected on the merits.
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OPINION
PER CURIAM.
Michael Lee Austin, a state prisoner proceeding pro se, appeals the order of the District Court granting Appellees’ respective motions to dismiss and denying his request to equitably toll the statute of limitations pending the exhaustion of his administrative remedies. For the reasons that follow, we will affirm.
I.
Austin is a prisoner in the custody of the Pennsylvania Department of Corrections (“DOC”) who, during the relevant time, was incarcerated at the State Correctional Institution at Rockview (“Rockview”).1 In October 2007, he commenced this action by filing a 42 U.S.C. § 1983 complaint in the District Court against DOC Secretary Jeffrey Beard and the following Rockview officials: Superintendent Franklin Tennis, Deputy Superintendents Marirosa Lamas and R. McMillan, Chief Psychologist Dr. Charles Walmer, Program Manager Melinda Smith, and psychiatrist Dr. Kevin Burke. Austin’s complaint raised First, Eighth, and Fourteenth Amendment claims, as well as a state law claim for breach of the duty of confidentiality. On the first page of his complaint, he admitted that he had not completed the prison’s grievance process with respect to his claims, and the various prison documents he submitted with his complaint reflected that incompleteness.
In February 2008, the defendants moved to dismiss the complaint pursuant to Fed. R.Civ.P. 12(b)(6) but did not submit an accompanying brief at that time. About a week later, Dr. Burke, who had retained separate counsel, filed an independent motion to dismiss and an accompanying brief. Shortly thereafter, the remaining defendants (hereinafter collectively referred to as “the DOC Officials”) filed a brief in support of their February 2008 motion to dismiss, arguing, inter alia, that Austin had failed to exhaust his administrative remedies with respect to his federal claims as required by the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a). Dr. Burke had not raised this argument in his brief. Austin subsequently filed a “Motion for the Allowance of Equitable Tolling and to Expendite [sic] the Administrative Grievance Process,” ap*782parently seeking to equitably toll the statute of limitations while he “exhausts and then re-file[s][his] case ... under a new civil action [number].... ”
In June 2008, the Magistrate Judge issued a report recommending that, in light of Austin’s failure to exhaust his administrative remedies, the court grant both motions to dismiss and deny Austin’s motion. In July 2008, the District Court adopted the report, denied Austin’s motion, and dismissed the complaint without prejudice. Austin now appeals the District Court’s judgment to this Court.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.2 We exercise plenary review over a district court’s decision to grant a motion to dismiss. See Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 242 (3d Cir.2008).
Under the PLRA, a prisoner must exhaust all available administrative remedies before raising claims under § 1983 concerning prison conditions. See 42 U.S.C. § 1997e(a). To meet this requirement, a prisoner must properly exhaust his administrative remedies. Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules....” Id, at 90-91, 126 S.Ct. 2378. A prisoner’s failure to exhaust is an affirmative defense, Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), and a defendant may, “in appropriate cases,” move to dismiss the complaint on that basis. Brown v. Croak, 312 F.3d 109, 111 (3d Cir.2002).
Under the DOC’s grievance procedure, an inmate must file a grievance with the Facility Grievance Coordinator within fifteen working days of the alleged event(s) at issue. See Pa. Dep’t of Corr. Policy Statement, DC-ADM 804, Part VI.A.8. Once a decision is issued, the inmate generally has ten working days to appeal to the prison’s Facility Manager. See id. at Part VT.C.l, 2. After the Facility Manager issues a decision, the inmate generally has fifteen working days to file a final appeal with the Office of Inmate Grievances and Appeals. See id. at Part VI.D.1.
In this case, Austin himself acknowledged that he had failed to complete the DOC’s grievance process, and the prison documents submitted with his complaint confirm his failure to properly exhaust his remedies. Indeed, Austin sought equitable tolling so that he could exhaust his administrative remedies. Accordingly, the District Court correctly dismissed Austin’s federal claims against the DOC Officials. Although Dr. Burke did not raise the issue of exhaustion in his separate motion to dismiss, the District Court did not err in dismissing the federal claims against him because it was clear from the complaint and accompanying documents that those claims were unexhausted. Cf. Ray v. Kertes, 285 F.3d 287, 293 n. 5 (3d Cir.2002) (noting that a district court may “dismiss sua sponte a complaint which facially violates a bar to suit”).
Having dismissed Austin’s federal claims, the court acted within its discretion in declining to exercise supplemental jurisdiction over his state law claim. See 28 U.S.C. § 1367(c)(3); Figueroa v. Bucca*783neer Hotel Inc., 188 F.3d 172, 181 (3d Cir.1999). Moreover, the District Court did not err in denying Austin’s request for equitable tolling, for he failed to demonstrate that such extraordinary relief is warranted here. See Santos v. United States, 559 F.3d 189, 197 (3d Cir.2009).3 Finally, we have considered the remaining arguments Austin raises in his brief and conclude that they are without merit.
In light of the above, we will affirm the District Court’s order granting Appellees’ respective motions to dismiss and denying Austin’s motion for equitable tolling. Austin’s request for appointment of counsel is denied.
. Austin is currendy incarcerated at the DOC's State Correctional Institution at Cresson.
. Although an order of dismissal generally must be with prejudice to be appealable, "a plaintiff can appeal from a dismissal without prejudice when he declares his intention to stand on his complaint or when he cannot cure the defect in his complaint.” Booth v. Churner, 206 F.3d 289, 293 n. 3 (3d Cir.2000). As noted below, Austin cannot cure the defect in his complaint because the time for exhausting his administrative remedies has long since passed. Accordingly, this appeal is properly before us.
. It appears that Austin now describes his motion for equitable tolling as a motion to stay the District Court proceeding pending the exhaustion of his administrative remedies. Even if (1) Austin's motion could be interpreted as seeking a stay and (2) he could go back and exhaust his remedies — the time for doing so, however, passed more than two years ago — such a motion would still lack merit. See Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir.2003) (recognizing that “many of our sister circuits [have held] that permitting exhaustion [while the lawsuit is pending] ... undermines the objectives of section 1997e(a) and that the [statute] ... clearly contemplates exhaustion prior to the commencement of the action ..., thus requiring an outright dismissal of such actions rather than issuing continuances so that exhaustion may occur").
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
This cause was raised by Theodore Weatherbee as a complaint for declaratory judgment and injunctive relief. Following a hearing on the Pennsylvania Department of Welfare’s motion to dismiss, the District Court: converted the motion to dismiss into summary judgment; denied the motion; precluded the Department from denying Medicaid benefits to Weatherbee; and, closed the case. The facts and procedures are well known to the parties and are discussed in the District Court’s opinion. Hence, we will not reiterate them here.
Two basic issues are raised on appeal. The Department of Public Welfare asserts that the annuity purchased by the community spouse in this case is properly regarded as a “resource” for purposes of Medicaid eligibility, and is therefore a proper basis to deny Weatherbee benefits under the Medical Assistance Long-Term Care program. The Department also argues that the District Court did not provide sufficient notice of its conversion of the motion to dismiss into summary judgment, prejudicing its case.
42 U.S.C. § 1396p generally governs the transfer of assets by Medicaid applicants and their spouses. We find that the District Court properly stated that the changes brought about by the Deficit Reduction Act are not ambiguous and must be read within the larger context of the longstanding rule that community spouse income is not available to an institutionalized spouse. 42 U.S.C. § 1396r-5. Therefore, contrary to the Department’s interpretation, § 1396p(e)(4) cannot be regarded as a basis by which it may deny eligibility for benefits where the annuity otherwise complies with the law. In this case it is clear that the community spouse gave up a “resource” in exchange for a guaranteed “income,” as it is defined in 42 U.S.C. § 1382a(2)(B).
Moreover, the Department of Welfare’s assertion that the annuity is a resource because it could be sold on a secondary market is fundamentally flawed. As we stated in a prior decision, impediments to a transfer that may incur legal liability for the owner of the asset preclude consideration of that asset as a resource. James v. Richman, 547 F.3d 214, 218 (3d Cir.2008).
*788Finally, we agree with the District Court that the state law referenced by the Department is preempted. States that elect to participate in the Medicaid program must comply with eligibility requirements set by the Federal government. 42 U.S.C. § 1396(a)(10)(C)(i). The eligibility requirements established by the states may be more liberal than those of the Federal government, but they may not be more restrictive. 42 U.S.C. 1396(a)(10)(C)(i)(III). In this case, the Department of Welfare argues that it may rely on 62 P.S. § 441.6(b) to substantiate its decision to deny benefits. However, we read the statute as narrowing the annuity exemption from Medicaid eligibility analysis, and therefore conclude that the District Court properly regarded this state statute as conflicting with federal law. The District Court did not err in ruling that 62 P.S. § 441.6(b) is preempted. For all of these reasons, the District Court did not err in finding that the Department of Welfare improperly denied Weatherbee eligibility for Medicaid benefits.
With regard to the District Court’s handling of the Department of Welfare’s Motion to Dismiss, the Department argues that the District Court did not provide sufficient notice of its intent to convert the motion to dismiss into a motion for summary judgment. A district court must provide the parties “‘reasonable opportunity’ to present all material relevant to a summary judgment motion.” In re Rockefeller Center Properties, Inc. Securities Litigation, 184 F.3d 280, 288 (3d Cir.1999), (citing Fed.R.Civ.P. 12(b)). However, a failure to provide proper notice is not cause for reversal where the error is harmless. Id.
The Department of Welfare claims prejudice on the basis that it was not able to break down the annuity to determine the portion that was income and the portion that was “resource.” This calculation is irrelevant to the holding. The Department also claims that it was not able to gather other guidance from the Centers for Medicare and Medicaid Services that might have been instructive or clarifying in its case. However, the Department fails to state that such guidance actually existed, and provides us with no reason to believe that it would have been decisive, given that the guidance proffered by the Department and considered by the District Court essentially restates the provisions of the statute. Moreover, Weatherbee correctly notes that the Department had fifteen months to prepare for argument on its motion to dismiss. For these reasons, even were we to conclude that the District Court erred, we find that the Department was not prejudiced.
For all of these reasons, we will affirm the order of the District Court.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mohammad Gondel and Saleem Iqbal Gondel appeal from the district court’s order dismissing their complaint for failure to state a claim upon which relief may be granted. We have reviewed the record and the briefs filed by the parties and we find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Gondel v. PMIG 1020, LLC, No. 1:08-cv-01768-CCB, 2009 WL 248681 (D.Md. Jan. 22, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cornelius A. Tucker appeals the district court’s order denying his motion for release on bail pending disposition of his 28 U.S.C. § 2254 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Tucker v. Johnson, No. 7:09-cv-00171-sgw-mfu (W.D.Va. June 22, 2009). Tucker has also moved in this court for release pending appeal; we deny the motion. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8474282/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Manuel T. Ruffin appeals the district court’s order granting the Defendant’s motion to dismiss Ruffin’s employment discrimination action under Federal Rule of Civil Procedure 12(b)(6). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Ruffin v. Dep’t of Corr., No. 5:08-cv-00521-BO (E.D.N.C. Apr. 30, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn X. Henny appeals the district court’s order granting summary judgment for Defendants in his action alleging claims under the Religious Land Use and Institutionalized Persons Act and 42 U.S.C. § 1983 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Henny v. Harvey, No. 7:08-cv-00399-jct-mfu, 2009 WL 811623 (W.D.Va. Mar. 27, 2009). We deny Hen-nyA motion for appointment of counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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*822Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Glamorgan Coal Corporation seeks review of the Benefits Review Board’s decision and order affirming the administrative law judge’s award of black lung benefits pursuant to 30 U.S.C. §§ 901-945 (2006). Our review of the record discloses that the Board’s decision is based upon substantial evidence and is without reversible error. Accordingly, we deny the petition for review for the reasons stated by the Board. Glamorgan Coal Corp. v. Marshall, No. 07-0960-BLA (B.R.B. Aug. 29, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Love Williams appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Williams v. Ozmint, No. 6:07-cv-02409-DCN, 2008 WL 4372986 (D.S.C. Sept. 22, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrence Maurice Whitaker petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his 28 U.S.C. § 2254 (2006) habeas corpus petition. He seeks an order from this court directing the district court to act. Our review of the district court’s docket sheet reveals that the district court entered a final order and judgment granting summary judgment in favor of the respondent, dismissing the petition, and denying a certificate of appealability on September 30, 2009. Accordingly, because the district court has recently decided Whitaker’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the ma*829terials before the court and argument would not aid the decisional process.
PETITION DENIED.
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*840Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
ON REHEARING
PER CURIAM:
Amado Antonio Cartagena pled guilty without a plea agreement to unlawful reentry into the United States by a deported alien, in violation of 8 U.S.C. § 1326(a), (b)(2) (2006), and was sentenced to eighty months in prison. Cartagena appealed, and on February 22, 2008, we affirmed his conviction and sentence. See United States v. Cartagena, 266 Fed.Appx. 286 (4th Cir.2008). Cartagena now seeks to file a second appeal of his conviction and sentence. We have previously affirmed this judgment, and we dismiss the appeal as duplicative and untimely. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deborah Sue Aldridge appeals the district court’s order denying without prejudice her application to proceed in forma pauperis in her civil action. We have reviewed the record and find no abuse of discretion. Accordingly, we affirm for the reasons stated by the district court. Aldridge v. Hansen, No. 3:09-cv-00157-REP (E.D.Va. Mar. 30, 2009). We deny Aldridge’s motions to expedite and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Danny L. Blackmon petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his motion seeking documents from his criminal case. He seeks an order from this court directing the district court to act. We find there has been no undue delay in the district court. Accordingly, we deny the mandamus petition. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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Petition denied in part and dismissed in part by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Awunti Suzane Mafor, a native and citizen of Cameroon, petitions for review of an order of the Board of Immigration Appeals (“Board”) dismissing her appeal from the immigration judge’s decision denying her requests for withholding of removal and protection under the Convention Against Torture. For the reasons set forth below, we deny in part and dismiss in part the petition for review.
Mafor contends that the Board and the immigration judge erred in denying her request for withholding of removal. “Withholding of removal is available under 8 U.S.C. § 1231(b)(3) if the alien shows that it is more likely than not that her life or freedom would be threatened in the country of removal because of her race, religion, nationality, membership in a particular social group, or political opinion.” Gomis v. Holder, 571 F.3d 353, 359 (4th Cir.), petition for cert. filed, 78 U.S.L.W. 3091 (Aug. 11, 2009) (No. 09-194); see 8 U.S.C. § 1231(b)(3) (2009). Based on our review of the record, we find that substantial evidence supports the finding that Ma-for failed to make the requisite showing before the immigration court. We therefore uphold the denial of her request for withholding of removal.
Additionally, we find that substantial evidence supports the finding that Mafor failed to meet the standard for relief under the Convention Against Torture. To obtain such relief, an applicant must establish that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2) (2009). We find that Mafor failed to make the requisite showing before the immigration court.
Finally, Mafor claims that (1) the Board failed to consider whether she would be persecuted in Cameroon based on her membership in a social group; and (2) the overseas investigation breached her confidentiality in violation of 8 C.F.R. § 208.6 (2009). We lack jurisdiction over these claims because Mafor failed to raise them before the Board. See 8 U.S.C. § 1252(d)(1) (2006) (“A court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right.”); Massis v. Mukasey, 549 F.3d 631, 638-40 (4th Cir.2008) (holding that the court lacks jurisdiction to consider an argument that was not raised before the Board and pro*807viding no exception for manifest injustice). We therefore dismiss the petition for review as to these claims.
Accordingly, we deny in part and dismiss in part the petition for review. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED IN PART AND DISMISSED IN PART.
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*822Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Glamorgan Coal Corporation seeks review of the Benefits Review Board’s decision and order affirming the administrative law judge’s award of black lung benefits pursuant to 30 U.S.C. §§ 901-945 (2006). Our review of the record discloses that the Board’s decision is based upon substantial evidence and is without reversible error. Accordingly, we deny the petition for review for the reasons stated by the Board. Glamorgan Coal Corp. v. Marshall, No. 07-0960-BLA (B.R.B. Aug. 29, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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https://www.courtlistener.com/api/rest/v3/opinions/8474273/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Love Williams appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Williams v. Ozmint, No. 6:07-cv-02409-DCN, 2008 WL 4372986 (D.S.C. Sept. 22, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8474277/
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*840Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
ON REHEARING
PER CURIAM:
Amado Antonio Cartagena pled guilty without a plea agreement to unlawful reentry into the United States by a deported alien, in violation of 8 U.S.C. § 1326(a), (b)(2) (2006), and was sentenced to eighty months in prison. Cartagena appealed, and on February 22, 2008, we affirmed his conviction and sentence. See United States v. Cartagena, 266 Fed.Appx. 286 (4th Cir.2008). Cartagena now seeks to file a second appeal of his conviction and sentence. We have previously affirmed this judgment, and we dismiss the appeal as duplicative and untimely. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deborah Sue Aldridge appeals the district court’s order denying without prejudice her application to proceed in forma pauperis in her civil action. We have reviewed the record and find no abuse of discretion. Accordingly, we affirm for the reasons stated by the district court. Aldridge v. Hansen, No. 3:09-cv-00157-REP (E.D.Va. Mar. 30, 2009). We deny Aldridge’s motions to expedite and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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PER CURIAM: *
The Federal Public Defender appointed to represent Francisco Javier Martinez-Castillo has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Martinez-Castillo has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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https://www.courtlistener.com/api/rest/v3/opinions/8474286/
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PER CURIAM: *
The case in this appeal is another in a group of over forty cases currently pending related to Hurricane Katrina that have been consolidated for pretrial purposes in the Eastern District of Louisiana. Plaintiffs-appellants, former residents of the Lower Ninth Ward in New Orleans, filed tort and admiralty claims against the United States of America for injuries due to flooding. The present appeal is taken from the district court’s dismissal of these claims for lack of subject-matter jurisdiction based on plaintiffs’ failure to exhaust administrative remedies. For the reasons discussed below, we affirm.
I. Factual and Procedural Background
Plaintiffs sued the United States, along with several Louisiana state and private *936entities, for personal injury and property damage suffered due to flooding from the Industrial Canal, the Mississippi River Gulf Outlet, and the Gulf Intracoastal Waterway in the wake of Hurricane Katrina. Plaintiffs’ claims against the United States included that the United States Army Corps of Engineers violated federal statutory and state tort law by defectively designing and negligently maintaining these waterways and by failing to ensure that at least one privately-owned barge was properly moored. Jurisdiction as to the claims against the United States was premised on the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq., the Suits in Admiralty Act (SAA), 46 U.S.C. § 30901 et seq., and the Public Vessels Act (PVA), 46 U.S.C. § 31101, et seq.
The district court dismissed the claims against the United States for lack of subject-matter jurisdiction. The court concluded that plaintiffs had failed to exhaust administrative remedies under the FTCA, which waives sovereign immunity only if the claimant has “first presented the claim to the appropriate Federal agency” and the agency has rejected or taken no action on the claim within six months of filing. 28 U.S.C. § 2675(a); 28 C.F.R. § 14.2. The court ruled that a December 14, 2006, letter that the plaintiffs submitted to the Army Corps of Engineers did not fulfill the exhaustion requirement because it lacked sufficient detail to allow the agency to review the claim. Noting that plaintiffs’ alleged injuries had occurred on land, the district court also concluded that the SAA and PVA, both of which waive sovereign immunity for admiralty claims and do not contain an exhaustion requirement, did not provide bases for jurisdiction. The district court noted that the Admiralty Extension Act (AEA), 46 U.S.C. § 30101, which extends the SAA and PVA to cover instances in which a vessel on navigable water causes damage on land, could provide a basis for jurisdiction but concluded that the AEA’s exhaustion requirement, which is similar to that of the FTCA,1 had not been met. This appeal followed. Plaintiffs challenge the merits of the district court’s decision and also argue for reversal based on what they allege was the district court’s improper failure to recuse.
II. The Challenge on the Merits
As plaintiffs acknowledged in their appellate briefing, this is not the first time that a court in this circuit has addressed precisely these issues between precisely these parties. Plaintiffs raised the same allegations in a complaint and third-party claims against the United States in a related action. In that action, the district court dismissed for lack of subject-matter jurisdiction, concluding that only the FTCA or AEA provided bases for jurisdiction and that plaintiffs had failed to meet the exhaustion requirements of those statutes. In re Complaint of Ingram Barge Co., 435 F.Supp.2d 524 (E.D.La.2006). After that dismissal, plaintiffs re-filed these same claims against the United States in an amended third-party complaint. The district court dismissed on the basis of res judicata. In re Complaint of Ingram Barge Co., Nos. 05-4419, 05-4237 (E.D.La. Jan. 16, 2007) (No. 490). Plaintiffs then filed a motion for reconsideration contending, among other things, that a letter submitted to the Army Corps of Engineers that was virtually identical to the letter submitted in the present action met the exhaustion requirement. The district court concluded that the letter lacked suf*937ficient detail to meet the exhaustion requirement and denied reconsideration. In re Complaint of Ingram Barge Co., Nos. 05-4419, 05-1237, 2007 WL 550060 (E.D.La. Feb.15, 2007). This court affirmed these dismissals. Ingram Barge Co. v. Parfait Family (In re Complaint of Ingram Barge Co.), 2009 WL 2447716, 351 Fed.Appx. 842 (5th Cir.2009).
Plaintiffs’ counsel in the present case also filed substantially similar claims against the United States on behalf of different plaintiffs in the consolidated action. The district court dismissed these claims for lack of subject matter jurisdiction, concluding, like the district court in Ingram Barge, that only the FTCA or AEA provided bases for jurisdiction and that plaintiffs had failed to meet the exhaustion requirements of those statutes. Berthelot v. Boh Bros. Constr. Co., L.L.C., Nos. 05-4182, 06-1885, 2007 WL 1239132 (E.D.La. Apr.27, 2007). This court affirmed the dismissal. O’Dwyer v. United States (In re Katrina Canal Breaches Litig.), 345 Fed.Appx. 1 (5th Cir.2009).
Plaintiffs’ appellate briefing in the present case was filed after the appeals were fully briefed in the above cases but before the Fifth Circuit opinions in those cases issued. In their briefing for the present case, plaintiffs asserted that the issues presented here are “virtually identical to and/or overlap with those already fully briefed” for the other Fifth Circuit panels and declined to further brief these issues. Plaintiffs urged instead that this panel incorporate by reference the arguments briefed in the other appeals, arguing “that it would serve no useful purpose to require [plaintiffs] to rebrief matters which have already been exhaustively briefed, several times over.”
The appeals in the above cases have now been decided against plaintiffs. We find— as plaintiffs anticipated — that these panel opinions and the district court opinions that they affirm address all of the issues that arise in the present case. We are bound by Ingram Barge, 2009 WL 2447716, 351 Fed.Appx. 842, which involved identical issues and parties, and find persuasive Katrina Canal Breaches, 345 Fed.Appx. 1, which involved identical issues and reached the same result. See 5th Cir. R. 47.5.4 (unpublished opinions are precedential “under the doctrine of res judicata”).2 Based on these precedents, we affirm the district court’s dismissal for lack of subject-matter jurisdiction.
We also note that even if the present appeal involved issues other than those addressed in the panel opinions — and plaintiffs have not made such an assertion — these issues would be waived for failure to brief. Plaintiffs have not briefed any challenge to the district court’s ruling in the present case, choosing instead to incorporate by reference arguments made in the related cases. Arguments merely incorporated by reference are not properly considered on appeal. See Turner v. Quarterman, 481 F.3d 292, 295 n. 1 (5th Cir.2007) (refusing to consider arguments before the district court that plaintiff incorporated by reference on appeal, concluding that this was a failure to adequately brief); Katz v. King, 627 F.2d 568, 575 (1st Cir.1980) (“If counsel desires our consideration of a particular argument, the argument must appear within the four cor*938ners of the brief filed in this court.”). Accordingly, plaintiffs have waived any arguments challenging the merits of the district court’s dismissal.
III. The Alleged Judicial Bias
Plaintiffs also contend that the district court’s dismissal should be reversed because the dismissal was “motivated, at least in part, by actual bias and prejudice and other judicial misconduct” by the district court. The source of the alleged bias is the district court’s alleged “close personal friendship]” with one of the attorneys that represented the state of Louisiana as a defendant in this case. Plaintiffs unsuccessfully moved the district court for disqualification under 28 U.S.C. §§ 144 and 455. For the reasons discussed in O’Dwyer v. United States, 2009 WL 3614541, **4-5, 351 Fed.Appx. 938, 944 (5th Cir.2009) (in which the plaintiffs, who were represented by the same counsel as plaintiffs in the present case, raised identical claims regarding the same district judge’s failure to recuse), we conclude that plaintiffs have failed to show that the district court abused its discretion in denying their motion to disqualify.
IV. Conclusion
Accordingly, we AFFIRM the judgment of the district court.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. The AEA's administrative exhaustion requirement provides that "[a] civil action [against the United States] may not be brought until the expiration of the 6-month period after the claim has been presented in writing to the agency owning or operating the vessel causing the injury or damage.” 46 U.S.C. § 30101(c)(2).
. "Four elements must be met for a claim to be barred by res judicata: '(1) the parties must be identical in the two actions; (2) the prior judgment must have been rendered by a court of competent jurisdiction; (3) there must be a final judgment on the merits; and (4) the same claim or cause of action must be involved in both cases.' ” Oreck Direct, LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009) (quoting Peoples State Bank v. Gen. Elec. Capital Corp. (In re Ark-La-Tex Timber Co.), 482 F.3d 319, 330 (5th Cir.2007)). The Ingram Barge case supplies all four elements.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474289/
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PER CURIAM: *
The case in this appeal is one of over forty cases currently pending related to Hurricane Katrina that have been consolidated for pretrial purposes in the Eastern District of Louisiana. Plaintiffs-appellants, who suffered injuries due to Hurricane Katrina, have sued various federal, state, and local government agencies and officials, alleging that these entities breached their duties to prepare for and respond to the hurricane. The present appeal is taken from the district court’s dismissal of plaintiffs’ claims against the defendant-appellee, the United States of America, for lack of subject-matter jurisdiction. We affirm the dismissal.
I. Factual and Procedural Background
Plaintiffs sued the United States government for “tortious and illegal conduct” relating to its preparations for and response to Hurricane Katrina. Jurisdiction was premised on the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671, which waives federal sovereign immunity for injury, property loss, or death caused by any federal government employee “while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Plaintiffs alleged that the government’s conduct violated the following statutes, directives, and regulations1: *940the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C. §§ 5121, et seq.; the Homeland Security Presidential Directive/HSPD-5, which was issued by the President under authority granted in part by the Stafford Act;2 the 2004 National Response Plan (NRP), which was developed by the Department of Homeland Security under directions from the Homeland Security Presidential Directive; Section 5 of the Flood Control Act of 1941, 33 U.S.C. § 701 and 33 C.F.R. § 203; and the Lake Pontchartrain and Vicinity Louisiana Hurricane Protection Project promulgated under the Flood Control Act of 1965.3 Plaintiffs’ complaint listed nineteen “duties” that the government allegedly violated in its preparation for and response to Hurricane Katrina, but did not explain how these statutes, regulations, and directives gave rise to those duties.
The United States moved to dismiss for lack of subject-matter jurisdiction, claiming sovereign immunity and failure to exhaust administrative remedies. The district court granted dismissal on the basis of sovereign immunity, concluding that the FTCA’s discretionary function exception barred jurisdiction. The discretionary function exception provides that the FTCA’s waiver of sovereign immunity “shall not apply to ... [a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The district court analyzed each of the statutes, regulations, and directives that plaintiffs cited and concluded that none imposed mandatory duties on the United States government. The court entered final judgment under Federal Rule of Civil Procedure 54(b) on September 17, 2008, and plaintiffs filed a notice of appeal the following day.
Before the parties submitted their appellate briefs, this court decided Freeman v. United States, 556 F.3d 326 (5th Cir. 2009). In Freeman, the plaintiffs sued under the FTCA, claiming that the United States’s preparation for and response to Hurricane Katrina violated mandatory duties imposed by the NRP. We affirmed the district court’s dismissal for lack of subject-matter jurisdiction, concluding that neither the NRP nor the “Catastrophic Incident Annex” to the NRP imposed mandatory duties on the government. Id. at 336-341. We held that the discretionary function exception in the FTCA and a similarly-worded exception in the Stafford Act, 42 U.S.C. § 5148,4 therefore applied to preclude jurisdiction. Id. at 334-341.
On appeal, plaintiffs argue that Freeman is distinguishable and was wrongly decided (the latter argument being addressable only to the en banc court). Plaintiffs also contend, for the first time on *941appeal, that the NRP’s Catastrophic Incident Annex was not timely completed, and request discovery into the effect of the government’s alleged failure to timely complete the Annex. Plaintiffs finally urge that the district court’s opinion should be vacated because the district court judge improperly failed to recuse himself for personal bias. Plaintiffs have not otherwise briefed any challenge to the district court’s conclusion that the statutes, regulations, and directives that plaintiffs cited in their complaint impose only discretionary duties and therefore fall under the FTCA’s discretionary function exception.5
II. Standard of Review
“We review a district court’s dismissal for lack of subject matter jurisdiction de novo.” Stiles v. GTE Sw., Inc., 128 F.3d 904, 906 (5th Cir.1997). “In our de novo review ..., we apply the same standard as does the district court....” Wagstaff v. U.S. Dep’t of Educ., 509 F.3d 661, 663 (5th Cir.2007) (internal quotation marks and citation omitted). The district court “has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981). Here, the district court did not resolve any disputed facts, so like the district court, we “consider the allegations in the plaintiff[s’] complaint as true.” Id. at 412. Plaintiffs, as the party asserting subject-matter jurisdiction, have the burden to prove that jurisdiction is proper. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001) (per curiam).
III. Analysis
A. Freeman and the Discretionary Function Exception
Plaintiffs contend that Freeman’s holding — that the discretionary function exceptions in the FTCA and Stafford Act bar claims against the United States premised on violations of the NRP — is distinguishable because the present case involves “much broader classes of claimants” than did Freeman and involves claims “against potentially liable parties other than the United States.” Neither argument provides a basis for distinguishing Freeman. As the government points out, the application of the discretionary function exception does not turn on the number of plaintiffs in a case or on the existence of defendants other than the United States. The discretionary function exception turns on whether the statute that the United States is alleged to have violated imposes a mandatory duty. 28 U.S.C. § 2680(a). Plaintiffs have not briefed any challenge to the Freeman panel’s conclusion, consistent with the district court’s conclusion in the present case, that the *942NRP imposes only discretionary duties on the United States. Freeman, 556 F.3d at 336-341. Nor have plaintiffs briefed any challenge to the district court’s conclusion that the other statutes, regulations, and directives cited in plaintiffs’ complaint impose only discretionary duties on the United States.6
Plaintiffs also urge that Freeman was wrongly decided because it held that the discretionary function exception applied regardless of the severity of the tortious conduct alleged. Plaintiffs cite several federal government reports that they contend describe shortcomings in the government’s preparations for and response to Hurricane Katrina,7 and argue that the discretionary function exception should “not allow the Federal Government to escape legal liability in circumstances in which private citizens would be legally liable.” Plaintiffs contend that the panel in Freeman — and the district court in the present case — should have permitted discovery into the severity of the government’s conduct before concluding that the discretionary function exception applied.
Again, in addition to the fact that only the en banc court (or the Supreme Court) can overturn Freeman, this contention lacks merit. The plain language of the FTCA provides that sovereign immunity is not waived as to “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The FTCA’s waiver of sovereign immunity must be strictly construed, United States v. Sherwood, 312 U.S. 584, 590-91, 61 S.Ct. 767, 85 L.Ed. 1058 (1941), and Congress, in granting a waiver of sovereign immunity, may define the exact conditions of such waiver, Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967). “We are bound to apply ‘the plain language of the statute, especially where ... there is nothing in the statute or its legislative history to indicate a contrary intent.’ ” St. Tammany Parish, ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 320 (5th Cir.2009) (quoting In re DP Partners Ltd., 106 F.3d 667, 671 (5th Cir. 1997)). Under the plain language of the FTCA, the severity of the government’s conduct is immaterial if the duty that the conduct allegedly violated is discretionary. Freeman’s holding properly applied the FTCA’s discretionary function exception in upholding dismissal.
Plaintiffs contend that the result should differ under the discretionary function exception to the Stafford Act, which is substantially similar to the discretionary function exception to the FTCA but omits the phrase “whether or not the discretion involved be abused.” See 42 U.S.C. § 5148. Plaintiffs cite the omission for the proposition that the Stafford Act “does not immunize” tortious conduct by the United States. As in Freeman, we do not consider the import of this difference in statutory language because plaintiffs have not argued that United States agencies or *943agents abused their discretion; instead, they have argued that they lacked discretion. See Freeman, 556 F.3d at 336; see also St. Tammany Parish, 556 F.3d at 322 n. 9 (“We need not decide whether this distinction has any meaning in this case because the Parish has not argued that the government abused its discretion” — “it has limited its argument to whether the government had any discretion at all.”). Plaintiffs’ arguments do not provide a basis for concluding that Freeman was wrongly decided and do not provide a basis for vacating the district court’s dismissal in the present case.
B. The Catastrophic Incident Annex
Plaintiffs argue, for the first time on appeal, that the Catastrophic Incident Annex to the NRP was not prepared within 120 days of the issuance of the NRP, as plaintiffs contend the NRP required. Plaintiffs urge that if the Catastrophic Incident Annex had been timely prepared, it would have imposed mandatory duties on the federal government that would have applied to the preparations for and response to Hurricane Katrina. Plaintiffs also contend, for the first time on appeal, that they are entitled to discovery as to whether “the deprivations [plaintiffs] suffered would not have been suffered, or would not have been suffered over such a prolonged period of time,” had the Catastrophic Incident Annex timely been prepared.
There does not appear to be any factual basis for plaintiffs’ contention that the Catastrophic Incident Annex was not timely prepared. As we observed in Freeman, the Catastrophic Incident Annex was published as part of the NRP in December 2004. 556 F.3d at 330. The NRP did not prescribe a time for publication of the Catastrophic Incident Annex because these documents were published together.8 Further, we held in Freeman that the NRP and Catastrophic Incident Annex did not impose mandatory duties on the government. 556 F.3d at 336-341. Plaintiffs have not briefed any challenge to that conclusion on appeal, so even if plaintiffs were correct that the Catastrophic Incident Annex was not timely prepared, their contention that a timely-prepared Annex would have imposed mandatory duties would fail.
More fundamentally, even if plaintiffs’ arguments as to timeliness had merit, this court could not consider them as bases for relief because they are raised for the first time on appeal. See Butler v. Cain, 533 F.3d 314, 320 (5th Cir.2008); LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir.2007) (“[A]rguments not raised before the district court are waived and eannot be raised for the first time on appeal.”). Plaintiffs’ contentions as to the Catastrophic Incident Annex do not provide a basis for vacating the district court’s dismissal or granting discovery.
*944C. The Alleged Judicial Bias
Plaintiffs also contend that the district court’s dismissal should be reversed because the dismissal was “motivated, at least in part, by actual bias and prejudice and other judicial misconduct” by the district court. The source of the alleged bias is the district court’s alleged “close personal friend[ship]” with one of the attorneys that represented the state of Louisiana as a defendant in this case. Plaintiffs unsuccessfully moved the district court for disqualification under 28 U.S.C. § 144 and § 455.
A motion for recusal is committed to the sound discretion of the trial judge. United States v. Merkt, 794 F.2d 950, 960 (5th Cir.1986). We review the denial of a motion to recuse for abuse of discretion. Matassarin v. Lynch, 174 F.3d 549, 571 (5th Cir.1999). Motions for recusal under 28 U.S.C. § 144 or § 455 must be timely. See 28 U.S.C. § 144 (requiring a “timely and sufficient affidavit” as a basis for refusal); Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994) (recusal motion under § 455 should be timely). A timely motion to recuse is one filed “at the earliest moment after knowledge of the facts demonstrating the basis” for recusal. Liljeberg, 38 F.3d at 1410. The failure of a judge to recuse “does not provide a basis for reversal absent evidence of actual bias or a nexus between actual errors and the appearance of bias.” United States v. Edwards, 303 F.3d 606, 647 n. 32 (5th Cir.2002); see also United States v. Jordan, 49 F.3d 152, 158 (5th Cir.1995) (concluding that alleged bias did not provide a basis for reversal where the plaintiff failed to allege “an explicit nexus between the alleged errors and the appearance of bias”).
We agree with the district court that plaintiffs’ motion to disqualify was not timely. The district court judge disclosed his friendship with the attorney at issue in March 2006, at the outset of the consolidated litigation. Plaintiffs did not raise any objection. Plaintiffs’ claims against the state of Louisiana were dismissed on the basis of Eleventh Amendment immunity in June and September 2006. Plaintiffs did not move for recusal until January 2008, nearly two years after the friendship was disclosed and a year-and-a-half after the counsel at issue ceased to represent any defendant in this case.9 Furthermore, plaintiffs have not explained why any alleged partiality to the state of Louisiana, long dismissed from this litigation, would have affected the district court’s decision to dismiss plaintiffs’ claims against the federal government, and have not pointed to any actual errors in the district court’s judgment. The district court’s refusal to recuse does not provide a basis for reversal.
IV. Conclusion
Accordingly, we AFFIRM the judgment of the district court.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. Plaintiffs' complaint also alleged that these statutes, regulations, and directives provided independent bases for jurisdiction, but plaintiffs did not reurge this position in their opposition to the motion to dismiss. The district court concluded that these statutes, regula*940tions, and directives do not contain waivers of sovereign immunity, and therefore do not provide independent bases for jurisdiction over claims against the United States. Plaintiffs do not challenge this conclusion on appeal.
. See Homeland Security Presidential Directive/HSPD-5, 2003 WL 604606 (Feb. 28, 2003).
. Pub.L. No. 89-298, § 204, 79 Stat. 1073, 1077 (Oct. 27, 1965).
.The discretionary function exception to the Stafford Act states:
The Federal Government shall not be liable for any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Federal Government in carrying out the provisions of this chapter.
42 U.S.C. § 5148.
. Plaintiffs state that because the district court’s opinion and the Freeman panel opinion are "quite detailed,” they "will not use this opportunity simply to regurgitate the available body of jurisprudence on the issue of the discretionary function exception.” To the extent that this statement can be interpreted as asking this court to incorporate by reference issues and arguments that plaintiffs have previously raised, this does not preserve these issues and arguments for appellate review. See, e.g., Goodman v. Harris County, 571 F.3d 388, 399 (5th Cir.2009) (issues inadequately briefed on appeal are waived); Turner v. Quarterman, 481 F.3d 292, 295 n. 1 (5th Cir.2007) (refusing to consider arguments before the district court that plaintiff incorporated by reference on appeal, concluding that this was a failure to adequately brief); Katz v. King, 627 F.2d 568, 575 (1st Cir. 1980) (“If counsel desires our consideration of a particular argument, the argument must appear within the four corners of the brief filed in this court.”). Accordingly, we consider only the issues and arguments that plaintiffs have briefed on appeal.
. Plaintiffs do cryptically assert that Freeman is distinguishable because "this case includes arguments that either were not made in Freeman or which have been ‘bolstered’ herein since Freeman was decided.” But plaintiffs do not identify these arguments or explain why they would support a contrary result. Issues not raised or inadequately briefed on appeal are waived. See Goodman, 571 F.3d at 399.
. Plaintiffs did not cite these reports before the district court and do not attach them for this court's review, instead directing this court to a website that does not exist. Arguments not raised before the district court are waived, as are arguments inadequately briefed on appeal. Butler v. Cain, 533 F.3d 314, 320 (5th Cir.2008); Goodman, 571 F.3d at 399. These reports may not properly be considered on appeal.
. The NRP and Catastrophic Incident Annex did state that within 120 days of the NRP's publication in December 2004, the Department of Homeland Security should "[i]dentify appropriate assets and establish agreement and procedures for their rapid deployment” in accordance with a "Catastrophic Incident Supplement” that was to be "more detailed and operationally specific” than the Catastrophic Incident Annex and separately published. The Department of Homeland Security did not complete this task until September 6, 2005, beyond the 120-day window and after the events of Hurricane Katrina. We held in Freeman that the 120-day timeline was discretionary and that the government's failure to meet the deadline did not provide a basis for suit under the FTCA or the Stafford Act. See Freeman, 556 F.3d at 330 n. 1, 338. Plaintiffs have not briefed a challenge to this conclusion on appeal.
. The counsel at issue began representing the state of Louisiana as a plaintiff in the consolidated litigation in August 2007, when the state brought a class action suit against more than 200 insurance companies alleging that these insurers breached certain insurance contracts to which Louisiana was a partial assignee. See In re Katrina Canal Litig. Breaches, 524 F.3d 700, 702-04 (5th Cir. 2008). Plaintiffs complain that they are prejudiced by counsel’s current participation on the Plaintiffs' Liaison Committee for the consolidated litigation, but do not explain why they are prejudiced, particularly because plaintiffs’ interests are generally aligned with those of the Committee. More importantly, plaintiffs do not explain how counsel’s participation on the Committee would bias the district court in its adjudication of plaintiffs' claims against the United States.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474291/
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ORDER
The district court denied Greg Fort’s motion under 18 U.S.C. § 3582(c)(2) to modify his sentence of life imprisonment for crack-cocaine offenses on the ground that he was ineligible for a reduction. Fort appeals. We have held that district courts do not have authority to reduce a defendant’s sentence below the bottom of the range provided by the retroactive amendments to the sentencing guidelines. United States v. Cunningham, 554 F.3d 703, 709 (7th Cir.2009). Here, even under the amended crack-cocaine sentencing guideline, Fort’s total offense level remains 43, see U.S.S.G. ch. 5, pt. A, cmt. n. 2, and the applicable guidelines range remains life imprisonment. Thus, we AFFIRM the judgment of the district court.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474293/
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ORDER
Lawson Rose appeals from the district court’s order dismissing his employment-discrimination suit for failing to effect timely service under Federal Rule of Civil Procedure 4(m). We affirm.
In February 2008, Rose, a former postal worker, sued the United States Postal Service (and two other defendants who we need not discuss) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Two months later, in April, the district court dismissed the case for failure to pay the required filing fee. After Rose paid the fee, the court reinstated the case, warned Rose that failure to properly serve the defendant under Rule 4 would result in a dismissal of the action, and further directed him to timely file the appropriate returns or waivers of service of summons and complaint in order to avoid dismissal. Rose did nothing.
At status hearings in November and December, the court asked Rose whether he had served the defendant. When Rose replied at the second hearing that he had not, the court took the matter “under advisement” for review of the rules.
In December 2008, the court dismissed the case for failure to complete service. In a minute order the court noted that Rose had been warned that he had to serve the defendant: “The advice was embodied in a minute order in the public record and sent to plaintiff. Plaintiff states that he was unaware of this requirement but this is impossible to credit because in a previous case he did serve de*84fendants.” The court noted that eight months has passed and the defendant was not in hiding.
On appeal Rose argues that the district court abused its discretion by failing to provide relief from Rule 4(m)’s requirement for timely service. Under Rule 4(m), a plaintiff must serve process within 120 days of filing a complaint or else show “good cause” for any delay. Fed. R. Civ. P. 4(m). Rose contends that his delay is due to good cause — namely, his unfamiliarity as a pro se litigant with the “technicalities” of federal procedure.
But neither a party’s pro se status nor his inexperience as a litigant excuse him from complying with the requirements of Rule 4(m). McMasters v. United States, 260 F.3d 814, 818 (7th Cir.2001); Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir.1988) (“To hold that complete ignorance of Rule 4(j) [predecessor of Rule 4(m) ] constitutes good cause for untimely service would allow the good cause exception to swallow the rule.”).
Nor do we question the district court’s conclusion that Rose failed to show he was unaware of his Rule 4 requirements. Rose cannot explain why, after three directives from the court, he could not come to terms with his obligations, particularly since he had managed to serve process on the Postal Service in a previous suit. Rose has not pointed to anything in the record that casts doubt on the court’s finding that his excuse was not credible.
Finally, Rose argues for the first time in his reply brief that the court abused its discretion when it dismissed the case with prejudice. But Rose forfeited this argument by failing to raise it in his opening brief. Nick’s Cigarette City, Inc. v. United States, 531 F.3d 516, 524 & n. 2 (7th Cir.2008); APS Sports Collectibles, Inc. v. Sports Time, Inc., 299 F.3d 624, 631 (7th Cir.2002); Georgou v. Fritzshall, 178 F.3d 453, 457 (7th Cir.1999).
Accordingly, we AFFIRM the district court’s judgment.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474294/
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ORDER
After mailing a pipe bomb to the man dating his former girlfriend, Robert Smith was convicted in 2005 of knowingly possessing an unregistered destructive device, see 26 U.S.C. § 5861(d), knowingly making a destructive device without first applying or paying taxes, see id. at § 5861(f), attempting to destroy a building using an explosive, see 18 U.S.C. § 844(i), and using and carrying a pipe bomb in relation to a crime of violence, see id. at § 924(c)(1)(A). We affirmed his convictions and sentences on direct appeal. See United States v. Smith, 502 F.3d 680 (7th Cir.2007). Since then Smith has filed not one or two, but three motions for a new trial, see Fed. R.Crim.P. 33, a motion to reconsider the *86denial of one such motion, and a motion requesting the recusal of the district court judge. None of Smith’s filings has succeeded. He now appeals from the district court’s denial of his second and third motions for a new trial and his motion for recusal of the district court judge.1
As explained more fully in our opinion affirming Smith’s convictions, the evidence at trial established that Smith mailed a pipe bomb to an Allstate insurance agency in Crest Hill, Illinois in July 2003. The package containing the bomb was addressed to Leo Bick, who was at that time dating Smith’s former girlfriend. Fortunately for everyone involved, Smith’s pipe bomb did not work as planned. Although he had rigged it with wires, an ignitor, and a mousetrap so that it would explode when the package was opened, it failed to do so. Instead, the DuPage County Bomb Squad was able to deactivate the pipe bomb. After a year-long investigation, Smith was arrested and charged as described above.
The evidence at trial linking Smith to the bomb was fairly extensive, and included the discovery of his fingerprint on a plastic bag inside the bomb and a piece of hair stuck in the tape holding the bomb together that was a mitochondrial DNA match with Smith’s hair. Despite this extensive evidence, Smith continues to assert his innocence and advance various theories in support of his belief that he was framed. In support of his motions for a new trial, Smith claims that new evidence has emerged demonstrating his actual innocence. He asserts that after trial he learned from the Presentence Investigation Report about an allegedly unlawful search of his residence. He also claims that “sniffer dogs” were used to search for explosive powder, and that the dogs alerted to certain areas in the residence. According to Smith, his failure to learn about the use of the dogs before trial suggests that the dogs falsely alerted to the presence of explosive powder, a fact he believes would have somehow undermined most of the other evidence of guilt presented at his trial.
Smith also paints a complicated picture of a conspiracy between Judge Castillo, the law firm of Kirkland and Ellis, and Allstate Insurance Agency that he believes caused Judge Castillo to rule “heavily in favor of the prosecution.” Finally, Smith makes much of the fact that his trial counsel was a professor at the Bluhm Legal Clinic at Northwestern University School of Law and that Judge Castillo worked at Northwestern as an adjunct professor. The district court denied Smith’s motions for a new trial, concluding that he had failed to meet the stringent standards of Rule 33 or offer any information that called into question the “overwhelming” evidence of his guilt. The court also denied Smith’s motion for a recusal, deeming it both unnecessary and untimely.
We review the district court’s denial of Smith’s motions for a new trial under Rule 33 for an abuse of discretion. See United *87States v. Acosta, 534 F.3d 574, 592 (7th Cir.2008). Smith suggests that the prosecution’s failure to inform him of the results of the dog sniff amounts to a Brady violation and that a new trial is in order. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Fed. R.Crim.P. 33. A new trial is warranted when a defendant has evidence that (1) was discovered after trial; (2) could not have been discovered sooner with due diligence; (3) is material; and (4) would probably result in an acquittal if presented at trial. United States v. Reyes, 542 F.3d 588, 595 (7th Cir.2008).
Smith’s allegedly newly discovered evidence falls short of warranting a new trial across the board. First, although his brief suggests that he did not know about the search itself, the search was contested throughout the trial. Thus, the fact of the search is not by any means “newly discovered.” Moreover, assuming the results of the dog sniff search were not in fact tendered to Smith’s attorney (an unlikely possibility given that Smith’s attorney referred to “the report” from the search during trial), they are not material and would not have “probably” resulted in an acquittal. See Reyes, 542 F.3d at 595. Smith’s theory is that because he did not personally see the results of the testing done on swabs taken from those areas where the dog alerted to explosives, this must mean the swabs tested negative for the presence of explosives. Had he been able to present this information to the jury, Smith theorizes, it would have “opened [a] Pandora’s Box for the prosecution” that would have revealed that a government agent “probably planted evidence.” On the contrary, evidence that a dog falsely alerted to the presence of explosives would have done little to undermine the extensive evidence presented at trial that Smith was the would-be bomber. In particular, a false positive by an explosive-sniffing dog would not have impacted the verdict in any relevant way. See United States v. Daniel, 576 F.3d 772, 775 (7th Cir.2009) (no Brady violation where there was “no reasonable probability” that suppressed information would have led to acquittal); Reyes, 542 F.3d at 596 (new trial unwarranted where it was “hard to conceive” how newly discovered evidence would have affected the verdict).
Similarly, we are unconvinced by Smith’s insistence that a government agent planted a shotgun shell in the garage during the search. Leaving aside Smith’s various theories about how this happened, the evidence of his guilt did not depend on the shotgun shell. Nothing that Smith now advances as “new” evidence casts any doubt on the fact that his hair and his fingerprint were found on the bomb and its packaging, that he had a post office box at the location used to mail the bomb, and that he had threatened the victim, Leo Bick, in the past and had a motive to harm him. In short, the district court did not abuse its discretion by denying Smith’s Rule 33 motions. See Reyes, 542 F.3d at 596.
That leaves Smith’s claim that Judge Castillo should have recused himself and that his failure to do so warrants a new trial. We review the district court’s decision not to recuse himself for abuse of discretion, see Tezak v. United States, 256 F.3d 702, 716 (7th Cir.2001), and we can see none here. As relevant here, a district judge’s recusal is warranted only where there is information that supports a finding of actual “bias or prejudice,” 28 U.S.C. § 144, or if the judge’s impartiality “might reasonably be questioned.” 28 U.S.C. § 455(a). Significantly, Smith has failed to comply with the procedures for requesting recusal under either § 144 (requiring defendant to file an affidavit in support of his motion) or § 455 (renewable only upon a defendant’s filing of a writ of mandamus). See Tezak, 256 F.3d at 717 & n. 16. More*88over, the fact that both Judge Castillo and court appointed counsel worked in different capacities at Northwestern University does not call Judge Castillo’s impartiality into question. Likewise, the fact that the law firm of Kirkland and Ellis once employed Judge Castillo and now represents Allstate Insurance (the company for which Bick worked) presents no threat that a “reasonable, well-informed observer,” In re U.S., 572 F.3d 301 (7th Cir.2009), would have questioned Judge Castillo’s impartiality. Nor is any of the evidence Smith advances to support his theory of bias “newly discovered” as would be required to warrant a new trial under Rule 33.
For the foregoing reasons we AFFIRM the district court’s denial of Smith’s motions for a new trial and his motion for recusal of the district court judge.
. Smith first filed an untimely appeal from the district court's June 2008 denial of his third motion for a new trial and his motion for recusal of the district court judge. This court ordered a limited remand to allow the district court to rule on Smith's second motion for a new trial (filed in February of 2008) and determine whether Smith should be granted an extension to appeal from the June 2008 order under Fed.R.Crim.P. 4(b)(4). The district court then extended the time to file a notice of appeal from its June 2008 order, an order which had the effect of making Smith's earlier appeal (No. 08-2859) — which was filed within 30 days of the original deadline for appeal — timely. See Fed.R.Crim.P. 4(b)(4). The district court also denied Smith’s second motion for a new trial, and Smith filed a timely notice of appeal (No. 09-1836). We have consolidated his appeals for decision
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ORDER
Paul Olsson, a pre-trial detainee and a defendant in an ongoing state criminal prosecution, sued 17 defendants for a variety of 42 U.S.C. § 1983, Racketeer Influenced and Corrupt Organizations Act, and supplemental state law claims. The district court dismissed some of his claims with prejudice and, invoking Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), dismissed the remaining ones without prejudice. We affirm.
Olsson is being prosecuted in Lake County, Illinois, for criminal sexual assault. He alleged in his complaint that the 17 named defendants — including state judges, prosecutors, defense lawyers and court personnel — conspired to violate his civil rights with regard to official documents and other aspects of the criminal case against him. He alleged specifically that Veronica O’Malley (then an assistant state’s attorney), Lake County circuit court clerk Sally Coffelt and Brian Telander (who was Olsson’s privately retained counsel) conspired in September 2006 to remove affidavits from the clerk’s office about his arrest, thereby violating public records laws, see 705 ILCS 105/16; 5 ILCS 160/11; 720 ILCS 5/32-8, and depriving him of his rights to due process and effective assistance of counsel.
In his complaint, Olsson also asserted nine other claims related to the defendants’ purported conspiracy. He alleged, among other things, a claim of racketeering, see 18 U.S.C. §§ 1961-68; a claim of conversion and extortion by certain defendants of his father’s posted bond; a claim of “dishonest government services and *94mail fraud”; a class-of-one equal protection claim; a claim under Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for misconduct by the Lake County state’s attorneys and for the Department of Human Services’s failure to provide access to a law library at Elgin Mental Health Center; as well as state claims for attorney malpractice (against Telander), for intentional and negligent infliction of emotional distress, and unreasonable delay in adjudicating his petition for habeas relief (against Kane County circuit court Judge Michael Colwell). See 735 ILCS 5/10-106. Olsson sought damages and declaratory and injunctive relief.
The district court reviewed Olsson’s complaint under 28 U.S.C. § 1915A and dismissed some of his claims with prejudice and others without prejudice, to reinstate when the Younger abstention doctrine or Heck no longer barred them. Among the claims dismissed with prejudice, for failure to state a claim, were the claim of conversion and extortion (because Olsson lacked standing to bring a claim for another individual’s money); the “dishonest government services” claim (because it was not a civil claim); and the class-of-one claim (because Olsson did not plead illegitimate animus on the defendants’ part). The court later denied Olsson’s motion to reconsider.
On appeal, Olsson generally challenges the district court’s conclusion that Younger abstention applies. Under that doctrine, federal courts must ordinarily abstain from enjoining ongoing state judicial proceedings that offer an adequate opportunity for review of constitutional claims. See Younger, 401 U.S. at 43-45, 91 S.Ct. 746. Olsson asserts that no meaningful state remedy is available to him.
State judicial proceedings, however, do offer an adequate opportunity for review of Olsson’s constitutional claims. As the district court noted, state criminal proceedings against him are ongoing, see Simpson v. Rowan, 73 F.3d 134, 137 (7th Cir.1995), and Olsson may litigate the issues raised in his complaint on direct appeal or state collateral review. He filed a state-court petition for habeas corpus in May 2008 that remains pending. Although Olsson maintains that the state court has inexcusably delayed deciding his habeas petition and therefore foreclosed the possibility of any relief, he has not shown that the state court’s process has been ineffective. A federal court “should assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary.” FreeEats.com v. Indiana, 502 F.3d 590, 598 (7th Cir.2007) (quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987)). Olsson’s petition has been pending only since May 2008, and there is no indication that the delay will be excessive.
Olsson also argues that his case presents “extraordinary circumstances” that require the federal courts to intervene in his state proceeding. Under Younger, federal courts may act only when extraordinary circumstances exist — when the pending state proceeding is motivated by a desire to harass or is conducted in bad faith, or when the federal plaintiff demonstrates an extraordinarily pressing need for immediate equitable relief to avoid an irreparable injury. FreeEats.com, 502 F.3d at 596-97. Olsson focuses on the first exception, asserting that the criminal proceedings against him are being carried out in bad faith to harass him.
Olsson has not pointed to evidence of bad faith or harassment to trigger this exception. See Younger, 401 U.S. at 54, 91 S.Ct. 746. He has failed to “present more than mere allegations and conclusions” of *95any such bad faith or harassment. Crenshaw v. Supreme Court of Ind., 170 F.3d 725, 729 (7th Cir.1999). Nor has he shown a need for immediate relief to prevent an irreparable injury. FreeEats.com, 502 F.3d at 597. As noted, Olsson has a state remedy available to him for litigating these issues, in the form of a direct appeal or his pending state habeas case.
Olsson next argues that the district court erred when it dismissed for lack of standing his § 1983 claim of conversion and extortion of his father’s bail money. He insists he has standing because he agreed to become a surety for the return of the money to his father.
We need not address this argument, however, because even if Olsson has standing, he has not stated a claim under § 1983. Although the loss of the bail money may raise due process concerns, a property deprivation resulting from a random, unauthorized act by state employees does not violate due process if the state provides a meaningful post-deprivation remedy. Parratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); see also Michalowicz v. Vill. of Bedford Park, 528 F.3d 530, 535 (7th Cir.2008); Belcher v. Norton, 497 F.3d 742, 750 (7th Cir.2007). In this case, Illinois has a statutory scheme regulating the return of bail money, 725 ILCS 5/110-7, and Olsson provides no explanation as to why a post-deprivation remedy is inadequate.
Finally, Olsson argues that the district court disregarded his pro se status, failed to construe his complaint liberally and wrongly dismissed several of his claims with prejudice before giving him an opportunity to amend the complaint. Although a court should grant a party leave to amend when justice requires it, see Fed R. Civ. P. 15(a)(2), the record shows that Olsson never sought leave to amend from the district court. He has therefore forfeited this argument. See Sharp Elecs. Corp. v. Metropolitan Life Ins. Co., 578 F.3d 505, 513 (7th Cir.2009).
Accordingly, we AFFIRM the judgment of the district court.
AFFIRMED.
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ORDER
A § 3582(c)(2) request for sentence modification is discretionary, United States v. Cunningham, 554 F.3d 703, 707 (7th Cir.2009), even for defendant Stephen Golden whose Guideline range was lowered to 360 months to life from a range of life, and despite Golden’s argument to the contrary a district judge is permitted to have a sentence alone which is what the judge did in Golden’s case. Id. The district judge did not abuse his discretion in handling Golden’s § 3582(c)(2) motion. And, like his decision whether to grant a sentence reduction, the district judge’s decision not to conduct a hearing is committed to his discretion. United States v. Young, 555 F.3d 611, 615 (7th Cir.2009).
AFFIRMED.
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ORDER
Byron Dubois Collins pleaded guilty to robbing a bank, see 18 U.S.C. § 2113(a), and was sentenced to 200 months in prison. Collins appeals, but his appointed counsel cannot identify any nonfrivolous arguments to pursue and moves to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Collins declined an invitation to respond to counsel’s submission, see Cir. R. 51(b), and so we confine our review to the issues outlined in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
At his first sentencing hearing, Collins requested a continuance to enable him to get tested for prostate cancer and have family members attend sentencing. The district court found that Collins’ medical problems did not warrant a continuance, but granted a one-month continuance so that his family could have more time to appear.
A month later, the parties reconvened for a second sentencing hearing. At the hearing, the district court calculated Col*98Iins' guideline imprisonment range. The court applied a base offense level of 20, see U.S.S.G. § 2B3.1(a), with two additional levels for taking property from a bank, see id. § 2B3.1(b)(l), three more levels for brandishing a dangerous weapon, see id. § 2B3.1(b)(2)(E), two levels for reckless endangerment during his high-speed getaway, see id. § 3C1.2, and a two-level reduction for acceptance of responsibility, see id. § 3E1.1, for a total offense level of 25. The court noted, however, that Collins met the criteria for a career offender, see id. § 4B1.1 (a), and since the maximum penalty for the robbery was 20 years, see 18 U.S.C. § 2113(a), the corresponding offense level was 32, see U.S.S.G. § 4Bl.l(b)(C). With a two-level reduction for acceptance of responsibility, see id. § 3E1.1, and a criminal history category of VI, Collins’ guideline imprisonment range was 168 to 210 months. The court imposed a term of 200 months’ imprisonment.
In his Anders submission, counsel first considers whether Collins could challenge his guilty plea. Collins, though, has told counsel that he does not want the plea set aside, and so counsel appropriately omits any discussion of the plea colloquy or the voluntariness of Collins’ plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002).
Counsel next assesses whether Collins could argue that the district court lacked sufficient evidence to support a three-level adjustment for brandishing a dangerous weapon, see U.S.S.G. § 2B3.1(b)(2)(E). But the court did not sentence Collins based on the guideline calculation that imposed the adjustment; because Collins was a career offender, the court sentenced him based on the higher offense level associated with the guidelines? career-offender provision. See U.S.S.G. § 4B1.1; United States v. Clanton, 538 F.3d 652, 660 (7th Cir.2008). Thus any challenge to an adjustment for brandishing a dangerous weapon would be moot.
Counsel then questions whether Collins could challenge his classification as a career offender. Collins disputed the classification at sentencing, insisting that he did not have two prior convictions for crimes of violence as required by U.S.S.G. § 4Bl.l(a). The district court, however, found three prior convictions for crimes of violence. The court found that Collins had two prior convictions for previous bank robberies—both crimes of violence, see U.S.S.G. § 4B1.2 cmt. n. 1—and a conviction for resisting an officer-also a violent offense because it presented a serious risk of physical injury (Collins, while driving a stolen car, had dragged the officer alongside for a short distance). See U.S.S.G. § 4B1.2 cmt. n. 1; United States v. Jones, 235 F.3d 342, 346-48 (7th Cir.2000). As the career offender guidelines require only two prior convictions for crimes of violence, see §§ 4B1.1, 4B1.2 cmt. n. 1; United States v. Templeton, 543 F.3d 378, 379 (7th Cir.2008), any challenge to the career offender classification would be frivolous.
Counsel next questions whether the district court erred by failing to include the two-level reduction for acceptance of responsibility in his total offense level. At sentencing, the judge incorrectly pronounced that Collins’ offense level was 32 when in fact her calculations dictated a level of 30. But the judge in fact arrived at the correct sentencing range (168 to 210 months) for someone with an offense level of 30 and a criminal history of VI. If the judge had actually used an offense level of 32, the guideline range would have increased to 210 to 262 months. Any misstatement by the court was therefore harmless, see, e.g., United States v. Stott, 245 F.3d 890, 915 (7th Cir.2001).
*99Counsel also questions whether the district court erred in denying a continuance in order for Collins to be tested for cancer. But the court did grant a continuance for a month in order that Collins’ relatives could attend the sentencing hearing. Collins did not object to the length of the continuance, never again mentioned his concern about cancer, and even told the court that the proposed continuance “would be fíne.” We will not reverse the denial of a continuance absent an abuse of discretion and a showing of actual prejudice to a defendant, see United States v. Vincent, 416 F.3d 593, 598 (7th Cir.2005), and we see no potential prejudice to Collins.
Finally, counsel notes that Collins has a history of mental health problems (namely depression), and questions at length whether the district court erred by not accounting for that history by departing below the guideline range. But Collins waived any appellate challenge because he never requested a downward departure. See United States v. Fudge, 325 F.3d 910, 916 (7th Cir.2003). Since waiver of an argument precludes any appellate review, our analysis of this potential issue would end there. See id. But even if Collins had pressed his departure requests, we would still see no error unless the sentence were unreasonable. See United States v. Vaughn, 433 F.3d 917, 924 (7th Cir.2006). Under U.S.S.G. § 5K2.13 (policy statement), the court should not account for diminished capacity by departing below the guideline range if the defendant’s offense involved a serious threat of violence or if the defendant’s criminal history reflected a need to protect the public. United States v. Zuniga-Lazaro, 388 F.3d 308, 313 (7th Cir.2004). The court explicitly found that Collins’ violent offense and criminal history reflected a need to protect the public, and we see no potential error in those findings. Any argument that his sentence was unreasonable would be without merit.
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
Wisconsin prisoner Earl Diehl appeals the denial of his petition for a writ of habeas corpus. We affirm the judgment.
In 1997 Diehl was convicted of burglary in Wisconsin state court and sentenced to eight years’ imprisonment. The trial court, however, stayed his prison sentence and imposed nine years’ probation. In 2005 Diehl was taken into custody by the Wisconsin Department of Corrections (“DOC”) for violating the terms of his probation by committing theft. The DOC released Diehl so he could be sentenced on the theft conviction and later renewed its order of detention. Diehl’s revocation hearing was rescheduled three times so that he could retain defense counsel. After his June 2005 revocation hearing, an administrative law judge ordered his probation revoked.
Diehl petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, claiming that the DOC’s second oi*der of detention violated the constitutional bar against double jeopardy and that the DOC’s failure to follow its internal rules during the revocation process violated due process. The district court adopted the report and recommendation of the magistrate judge and denied Diehl’s petition for habeas corpus relief. The court concluded that the DOC’s second detention order did not constitute a second punishment for the purposes of double jeopardy. The court also *101held that Diehl received due process after he was initially detained by the DOC and that the second detention order did not entitle him to a new set of due process protections.
On appeal Diehl renews his argument that the DOC violated his right to be free from double jeopardy because it issued two orders of detention based on the same probation violation. But Diehl’s DOC detentions do not constitute a violation of double jeopardy. The Double Jeopardy Clause protects against multiple punishments for the same offense. U.S. Const, amend. V; Garrity v. Fiedler, 41 F.3d 1150, 1151-52 (7th Cir.1994). But probation is part of Diehl’s original sentence, and a revocation of probation only modifies the terms of his original sentence. See United States v. Wyatt, 102 F.3d 241, 245 (7th Cir.1996); United States v. Hanahan, 798 F.2d 187, 189 (7th Cir.1986). Moreover, detention pending revocation of probation does not constitute punishment for double jeopardy purposes. See United States v. Mendoza-Morales, 347 F.3d 772, 776 (9th Cir.2003); United States v. Warneke, 199 F.3d 906, 908 (7th Cir.1999).
Diehl also repeats his argument that the DOC’s failure to follow its internal rules during the revocation proceedings violated his right to due process. Specifically, he contends that he did not have the opportunity to make a statement to DOC upon being detained; that he did not receive a preliminary revocation hearing; that the DOC failed to provide signed authorization of his probation revocation; that his revocation hearing was unreasonably delayed; and that the state revoked his probation on invalid grounds.
These contentions are meritless. Diehl’s revocation proceedings satisfied the due-process requirements set forth in Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). After his detention by the DOC, Diehl was given an opportunity to explain his probation violation. In addition, no preliminary hearing was warranted because Diehl’s theft conviction established probable cause that he violated the terms of his probation. See Moody v. Daggett, 429 U.S. 78, 86 n. 7, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976); Schepp v. Fremont County, 900 F.2d 1448, 1456 (10th Cir.1990). Nor does due process require the DOC to provide signed authorization of his probation revocation. See Gagnon, 411 U.S. at 786, 93 S.Ct. 1756. Although Diehl’s hearing was delayed two months, that delay resulted from his own request for assistance from counsel. See id. at 790-91, 93 S.Ct. 1756 (“the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself’); United States v. Eskridge, 445 F.3d 930, 932 (7th Cir.2006). Finally, Diehl’s conviction for theft was a valid ground for revocation of his probation. See United States v. Huusko, 275 F.3d 600, 602 (7th Cir.2001).
Diehl also filed in this court a motion for summary judgment, urging that the district court’s order be reversed because McCash has failed to respond to his arguments. However, a motion for summary judgment is not a proper request in this court. Although we have considered Diehl’s underlying arguments, we deny the motion.
Accordingly, we AFFIRM the decision of the district court.
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ORDER
In this criminal case, Henry Booker appeals from the district court’s denial of his motion, which he brought under Fed. R. Civ. P. 60(b), for relief from an earlier order refusing to grant him the full reduction to his criminal sentence that he sought under 18 U.S.C. § 3582(c). We affirm the judgment of the district court.
Booker pleaded guilty in 1994 to distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1). With his offense level of 37 and criminal history category of IV, his guideline sentencing range was 292 to 365 months in prison. The district court imposed a sentence of 240 months in prison, the statutory maximum under § 841(b)(1)(C). We affirmed his sentence on direct appeal, United States v. Booker, 70 F.3d 488 (7th Cir.1995), and the district court later denied his motion for collateral relief under 28 U.S.C. § 2255.
In 2008, Booker moved for a sentence reduction, see 18 U.S.C. § 3582(c), based on the retroactive changes in the crack cocaine guidelines that lowered the offense levels applicable to his conviction. The district court granted the motion and, based on his new guideline range of 235 to 293 months, which Booker does not dispute, reduced his sentence to 235 months in prison. The court declined his request to sentence him below the guideline range, stating that his original sentence was based on the statutory maximum, rather than a discretionary variance from the guideline range.
Booker did not appeal the § 3582(c) order but instead, after almost four months, moved for relief under Federal Rule of Civil Procedure 60(b), asserting that the district court was mistaken in imposing the 240-month statutory maximum in the first place. The court denied the motion.
Booker filed a timely notice of appeal of the denial of the Rule 60(b) motion (that is, within ten days of the denial, see Fed. R.App. P. 4(b)(1)(A)), but we must affirm the district court for two reasons. First, a motion under Rule 60(b) is a civil motion that is not available to an individual challenging his sentence under § 3582(c)(2). United States v. Fair, 326 F.3d 1317, 1318 (11th Cir.2003). Unlike forms of post-conviction relief that are civil in nature, see, e.g., Fisher v. Baker, 203 U.S. 174, 181, 27 S.Ct. 135, 51 L.Ed. 142 (1906) (habeas-corpus proceedings), every circuit court that has addressed § 3582(c)(2) has determined that it is criminal in nature and therefore covered only by rules applying to criminal cases, not civil cases. See, e.g., Fair, 326 F.3d at 1318 (holding that Fed.R.Civ.P. 60(b) does not apply to proceedings under § 3582(c)(2)); United States v. Espinosa-Talamantes, 319 F.3d 1245, 1246-47 (10th Cir.2003) (concluding civil Rule 4(a)(1)(B) for time to appeal does not apply to § 3582(c)(2)); United States v. Arrango, 291 F.3d 170, 171-72 (2d Cir.2002) (same); United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.2000) (same); United States v. Petty, 82 F.3d 809, 810 (8th Cir.1996) (same); United States v. Ono, 72 F.3d 101, 102-03 (9th Cir.1995) (same). Accordingly, the district court correctly denied the motion because it is not available to Booker.
Even if we assumed that Rule 60(b) motions exist in this criminal context, we would affirm. Booker attacks the underlying merits of the original § 3582(c) decision on grounds that he could have raised on direct appeal. Specifically he argues that the district court should have applied the same below-guidelines discount *104that it supposedly granted him originally. But in reviewing the denial of a Rule 60(b) motion, an appellate court does not have jurisdiction to review arguments attacking the merits of the underlying decision that could have been raised on direct appeal. See Browder v. Dir., Dep’t of Corr., of Ill., 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Stoller v. Pure Fishing, Inc., 528 F.3d 478, 480 (7th Cir.2008); Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir.2000); Castro v. Bd. of Educ. of City of Chi, 214 F.3d 932, 934 (7th Cir.2000). We are limited to reviewing whether the district court abused its discretion in denying Booker’s Rule 60(b) motion, see Castro, 214 F.3d at 934. But Booker fails to advance any argument that the district court abused its discretion in the Rule 60(b) order. He therefore has waived any such argument, see Fed. R.App. P. 28(a)(9)(A); Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001). We accordingly AFFIRM the judgment of the district court.
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*105ORDER
Robert Michener pleaded guilty to conspiracy to distribute marijuana. See 21 U.S.C. §§ 846, 841(a)(1). After finding that Michener had obstructed justice prior to his arrest, the district court refused to award him a downward adjustment under U.S.S.G. § 3E1.1 for acceptance of responsibility. Michener challenges the denial of acceptance points, but we affirm the judgment.
For approximately four years between 2002 and 2006, Michener was the leader of a network that supplied marijuana to customers in Wisconsin. As government investigators closed in, Michener resorted to drastic measures to avoid being ensnared. He threatened to kill anyone who cooperated, and when one of his associates was arrested and agreed to assist the investigation, Michener shipped him off to the Philippines and bankrolled his hideout.
But the ploy ultimately failed, and Michener was arrested. By all accounts, he then cooperated fully with investigators and even led them to $126,000 in drug proceeds stashed at a co-conspirator’s house. In June 2008, Michener agreed to plead guilty. The parties contemplated that the government would move under U.S.S.G. § 5K1.1 for a sentence below the guidelines range if Michener provided substantial assistance before sentencing. The plea agreement makes no mention of adjustments for either acceptance of responsibility or obstruction of justice.
In preparing the presentence investigation report, the probation officer concluded that Michener had obstructed justice by threatening to kill cooperating associates and sending one of them off to the Philippines. She recommended that Michener receive obstruction points under U.S.S.G. § 3C1.1. Although the probation officer acknowledged that there are “extraordinary cases” in which a defendant may receive added points for obstruction of justice and at the same time receive a point reduction for acceptance of responsibility, she recommended that Michener not receive a two-level decrease for acceptance of responsibility under U.S.S.G. § 3E1.1. Michener objected to both the proposed increase for obstruction and the recommendation against acceptance points.
Michener did not withdraw his objection to the proposed increase for obstruction before his sentencing hearing in October 2008. Not until that hearing did defense counsel finally concede that Michener’s obstructive conduct was beyond dispute, and even then counsel tried to minimize Michener’s behavior by suggesting that it was not “real serious” given that no one was injured. There is no evidence in the record, however, that Michener’s waffling about whether or not he opposed the increase for obstruction played any part in the district court’s decision to deny an adjustment for acceptance of responsibility. After finding that Michener had obstructed justice, the district court also found that the case was not extraordinary and did not warrant a reduction under § 3E1.1. After explaining that Michener’s “very serious” behavior was in “a different category” from most obstructive conduct, the court reasoned that Michener’s “helpful” assistance after his arrest was “not in any way so extraordinary as to make him eligible for acceptance of responsibility.” The court added that, even if Michener had not obstructed justice, acceptance points would not be warranted because he continued to deal marijuana for a year after discovering he was under investigation. The district court calculated the final guidelines range to be 210 to 262 months and then invited the parties to address the factors listed in 18 U.S.C. § 3553(a). The court granted the government’s motion for a below-range sentence in recognition of *106Michener’s substantial assistance and sentenced him to 151 months’ imprisonment.
Section 3E1.1 is designed to reward defendants who exhibit genuine contrition. United States v. Woodard, 408 F.3d 396, 397 (7th Cir.2005). The burden is on the defendant to demonstrate that he has accepted responsibility for his offense. United States v. Silvious, 512 F.3d 364, 370 (7th Cir.2008). But a defendant who has obstructed justice is presumed not to have accepted responsibility, and only in extraordinary cases will both adjustments be appropriate. U.S.S.G. § 3E1.1 cmt. n. 4. We review a sentencing court’s decision not to award acceptance points for clear error. United States v. Acosta, 534 F.3d 574, 580-81 (7th Cir.2008).
In United States v. Krasinski, 545 F.3d 546 (7th Cir.2008), we upheld a district court’s refusal to award acceptance points under similar circumstances. The defendant in Krasinski received obstruction points for threatening the life of a co-conspirator but refrained from any further obstructive behavior once he pleaded guilty. Id. at 553-54. The defendant had pleaded guilty only after he became convinced that his effort to obstruct justice would not succeed, and thus we upheld the district judge’s finding that the circumstances were not extraordinary. Id. at 554. Although all Michener’s obstructive behavior occurred before he was arrested, rather than before he pleaded guilty, this is a distinction without a difference.
It does not matter that, unlike the defendant in Krasinski, Michener provided substantial assistance to the government after his obstructive conduct ceased. The discounts for acceptance of responsibility and for providing substantial assistance recognize and reward distinct behaviors and should be evaluated “independently.” U.S.S.G. § 5K1.1 cmt. n. 2. Just as pleading guilty is insufficient to demonstrate acceptance of responsibility, Krasinski, 545 F.3d at 554, so too is providing substantial assistance.
The crux of Michener’s appeal is an attempt to shoehorn his disagreement with the district court’s factual determination into an argument that the court misinterpreted § 3E1.1. Michener’s claim is that a case is extraordinary as a matter of law whenever a defendant’s conduct can be neatly bifurcated into pre-arrest obstruction of justice and post-arrest cooperation. That proposition is not unheard of; the Ninth Circuit so held, see United States v. Hopper, 27 F.3d 378, 383 (9th Cir.1994), and the Sixth Circuit recently adopted the same position, see United States v. Gregory, 315 F.3d 637, 640-41 (6th Cir.2003). But we have explicitly rejected the Ninth Circuit’s position. United States v. Buckley, 192 F.3d 708, 711 (7th Cir.1999). As we explained, a defendant who obstructed justice cannot “wipe the slate clean, and earn the acceptance of responsibility discount, just by pleading guilty and thereafter refraining from obstructing justice further.” Id. The Fifth Circuit, Eighth Circuit, and Tenth Circuit agree with our view. See United States v. Salazar-Samaniega, 361 F.3d 1271, 1278-80 (10th Cir.2004); United States v. Chung, 261 F.3d 536, 540 (5th Cir.2001); United States v. Honken, 184 F.3d 961, 967-73 (8th Cir.1999).
Michener counters by citing United States v. Lallemand, 989 F.2d 936 (7th Cir.1993), for the proposition that there is “no logical or practical incompatibility, and no barrier in the language of the guidelines,” to allotting an upward adjustment to a defendant for obstruction of justice that occurred at “time t ” and granting a downward adjustment to that same defendant for acceptance of responsibility that occurred at “time t +1,” id. at 938. That is true as far as it goes. But Lallemand *107does not support Michener’s insistence that both adjustment are required under such circumstances. The defendant still must do something more to demonstrate acceptance of responsibility than merely refrain from obstructing justice.
Michener also argues that the district court erred as a matter of law when it weighed the seriousness of his obstructive behavior against the nature of his cooperation and determined that he had not accepted responsibility. But we have consistently allowed sentencing judges to compare indicia of acceptance of responsibility with the defendant’s obstructive behavior in deciding whether the particular case is extraordinary. See, e.g., Krasinski, 545 F.3d at 554; United States v. Boyle, 484 F.3d 943, 944-45 (7th Cir.2007); United States v. Keeter, 130 F.3d 297, 299 (7th Cir.1997). That approach is endorsed by the guidelines, see U.S.S.G. § 3E1.1. cmt. nn. 3, 4, and is consistent with the methodology adopted by the other circuits that have rejected the Ninth Circuit’s definition of an extraordinary case, see Salazar-Samaniega, 361 F.3d at 1280 (endorsing totality-of-the-circumstances approach); Honken, 184 F.3d at 968 (weighing defendant’s actions). The district court did not err by faithfully following the sentencing guidelines and our caselaw.
AFFIRMED.
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ORDER
Willie Brown Parks pleaded guilty to three counts of a four-count indictment for possessing crack cocaine with intent to distribute, see 21 U.S.C. § 841(a)(1), (b)(1)(B) (“Count I”); possessing a firearm in the furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A) (“Count II”); and being a felon in possession of a firearm, see 18 U.S.C. §§ 922(g), 924(a)(2) (“Count IV”). The district court sentenced Parks to 240 months’ imprisonment. Parks filed a notice of appeal, but his appointed counsel cannot identify any nonfrivolous arguments and has moved to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Parks declined our invitation to respond to counsel’s submission, see Cir R. 51(b), so we limit our review to the potential issues raised in counsel’s facially adequate brief. See United States v. Schtih, 289 F.3d 968, 973-74 (7th Cir.2002).
At sentencing, the district court determined that Parks was responsible for 77 grams of crack cocaine, which resulted in a base offense level .of 30 for both Counts I and IV, see U.S.S.G. § 2Dl.l(c)(5). The court applied a six-level increase because Parks assaulted a joolice officer during an attempt to flee arrest, see id. § 3A1.2(c)(1), and a three-level reduction for Parks’ acceptance of responsibility, see id. § 3El.l(b). This resulted in a total offense level of 33. With Parks’ criminal history category of IV, the guidelines range was 188-235 months, and the district court sentenced Parks to 180 months for Count I and the statutory maximum of 120 months for Count IV, see 18 U.S.C. § 924(a)(2), to run concurrently. The court also sentenced Parks to 60 months for Count II to run consecutively with these sentences. See U.S.S.G. § 2K2.4(b); 18 U.S.C. § 924(c)(1)(A).
Counsel evaluates one argument: whether Parks could argue that the 180-month sentence for Count I, though below the appropriately calculated guidelines range, was unreasonable in light of the factors set forth in 18 U.S.C. § 3553(a). Although the guidelines are advisory, sentencing judges must consider the factors enumerated in § 3553(a). See United States v. Booker, 543 U.S. 220, 245, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Ross, 501 F.3d 851, 853 (7th Cir.2007). Counsel does not challenge the guidelines range determined by the district court, but considers whether the sentencing judge may not have adequately accounted for Parks’ troubled childhood, his relative youth, and his chances of rehabilitation.
As counsel acknowledges, however, the court mentioned these factors in determining Parks’ sentence. Though sentencing *109courts must address the § 3553(a) factors, they need not explicitly articulate conclusions for each factor. See United States v. Rhodes, 552 F.3d 624, 627 (7th Cir.2009). Even so, the sentencing judge explicitly considered the § 3553(a) factors at sentencing, noting that, while Parks was only 24 years old at sentencing, he was already a recidivist whose juvenile record began at the age of seven. Further, the court stated that any mitigating effect of Park’s youth and troubled background had to be balanced against his continuing pattern of criminal conduct and the interest of protecting the public. Airy aigument that the district court failed to properly consider the § 3553(a) factors would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Parks’ appeal.
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*110ORDER
Robert Wilson appeals from an order reducing his prison sentence under 18 U.S.C. § 3582(c)(2) but not as much as he had hoped. Because Wilson does not point to any error by the district court, we affirm the order.
Wilson pleaded guilty in 2005 to distributing crack cocaine. See 21 U.S.C. § 841(a)(1). With his criminal history category of VI and a total offense level of 29, his guidelines imprisonment range was 151 to 188 months. The district court sentenced him to 168 months in prison.
In September 2009 Wilson moved under § 3582(c)(2) for a sentence reduction based on Amendments 706 and 709 to the guidelines. Amendment 706, which the Sentencing Commission has made retroactive, see U.S.S.G. § lB1.10(c), reduced the base offense level for most drug crimes involving crack, see U.S.S.G. supp. to app. C, 226-31 (2007) (amendment 706); United States v. Monroe, 580 F.3d 552, 554 (7th Cir.2009). Amendment 709, which is not retroactive, see U.S.S.G. § lB1.10(c), instructs sentencing courts, when computing a defendant’s criminal history score, to treat as a single sentence all prior sentences that were imposed on the same day, unless the underlying crimes were separated by an intervening arrest, see U.S.S.G. supp. to app. C, 235-41 (2007) (amendment 709); United States v. Alexander, 553 F.3d 591, 592 (7th Cir.2009). Wilson did qualify for a reduction under Amendment 706. But he also had been sentenced on the same day in state court for 11 prior convictions for driving on a revoked license, and because these driving offenses had been counted separately in calculating his criminal history score, Wilson argued that Amendment 709 entitled him to a further reduction beyond that warranted by Amendment 706. The district court granted the motion for reduction on the basis of Amendment 706 and reduced Wilson’s prison term to 144 months. But the court denied Wilson’s motion “in all other respects” and did not give him an even lower sentence based on Amendment 709.
Wilson asserts that the district court abused its discretion by refusing to further lower his sentence based on Amendment 709, but he never explains how that amendment applies or how the district court erred. Instead, Wilson argues for the first time that he never served any time in prison for the driving offenses and therefore they should not have counted at all toward his criminal history. But Wilson received a six-month jail term for each conviction (with each term running concurrently and all but 62 days suspended), so this contention would have been frivolous even on direct appeal. See U.S.S.G. § 4A1.2(c)(l); United States v. Morgan, 354 F.3d 621, 623 (7th Cir.2003). His contention, moreover, has nothing to do with Amendment 709 or § 3582(c)(2). See United States v. Lawrence, 535 F.3d 631, 637 (7th Cir.2008). In any event, as we have noted, Amendment 709 was not made retroactive by the Sentencing Commission, and thus the district court was correct that the amendment could not supply the basis for a further reduction under § 3582(c)(2). See U.S.S.G. § lB1.10(a)(2)(A), (c); Alexander, 553 F.3d at 593.
Affirmed.
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ORDER
Paul Kelly organized a drug conspiracy to smuggle heroin and cocaine into the United States using young women and babies as his drug mules. Kelly arranged at least seven trips to Panama in late 1998 and early 1999 to obtain the drugs. U.S. Customs stopped one of Kelly’s couriers in May 1999, discovered the drugs, and through her cooperation arrested Kelly. After his first plea was declared null and void, see United States v. Kelly, 337 F.3d *112897 (7th Cir.2003), Kelly pleaded guilty a second time to conspiracy to import cocaine and heroin into the United States in violation of 21 U.S.C. § 963 and was sentenced to 192 months in prison.
Five years later, Amendment 709 to the United States Sentencing Guidelines changed the rule under which courts determine whether prior sentences are counted separately for the purpose of calculating criminal history. U.S.S.G. § 4A1.2(a)(2), Supp. to App. C 235 (2008) (Amendment 709). Under the old rule, prior offenses were counted as a single sentence if they were consolidated for sentencing; under the new rule, prior offenses are counted as a single sentence if the sentence was imposed on the same day. See United States v. Alexander, 553 F.3d 591, 591-92 (7th Cir.2009). Under either rule, offenses are counted separately if there is an intervening arrest. U.S.S.G. § 4A1.2(a)(2).
On July 10, 2008, Kelly moved to have his sentence reduced pursuant to 18 U.S.C. § 3582(c)(2), invoking Amendment 709. Kelly asks the district court to modify his sentence because he was sentenced on the same day for two of the offenses that contributed to his category VI criminal history. He asserts that Amendment 709 gives him a right to have the two offenses counted as one. The district court denied the motion on April 6, 2009.
Section 3582(c)(2) permits a district court to reduce a defendant’s sentence if his sentence was based on a guidelines range that has subsequently been lowered and the reduction would be consistent with the Sentencing Commission’s policy statements. See United States v. Forman, 553 F.3d 585, 588 (7th Cir.2009). But, as U.S.S.G. § lB1.10(a)(2)(A) makes clear, a district court may modify a sentence only if the amendment is expressly made retroactive. Because Amendment 709 was not made retroactive by the Sentencing Commission and does not clarify the guideline, it is not a basis for reduction under § 3582(c)(2). See Alexander, 553 F.3d at 592-93. And, in any event, even if Amendment 709 applied retroactively, it would not help Kelly because his two offenses were separated by an intervening arrest. See U.S.S.G. § 4A1.2(a)(2).
Kelly also argues that under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court cannot treat the Guidelines as mandatory for the purpose of § 3582(c)(2). This court foreclosed that argument in United States v. Cunningham, 554 F.3d 703 (7th Cir.2009), cert. denied, — U.S. -, 129 S.Ct. 2826, 174 L.Ed.2d 552 (2009). We see no reason to reopen it here.
Because the district court properly concluded that it lacked authority to reduce Kelly’s sentence, we Affirm its judgment.
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PER CURIAM.
Jerald Fitzwater, Iris Fitzwater, and Bishop A. Louis Vaughn, Sr., appeal the District Court’s1 order dismissing their complaint without prejudice for failure to comply with an order directing them to file within fourteen days an amended complaint in conformity with Rule 8 of the Federal Rules of Civil Procedure. Following careful review, we find no abuse of discretion. See Mangan v. Weinberger, 848 F.2d 909, 911 (8th Cir.1988) (abuse of discretion review of Fed.R.Civ.P. 41(b) dismissal for failure to comply with Fed. R.Civ.P. 8) cert. denied, 488 U.S. 1013, 109 S.Ct. 802, 102 L.Ed.2d 793 (1989). We further conclude that all other issues and arguments raised by plaintiffs on appeal are meritless.
Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas.
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PER CURIAM.
Olen Gibson appeals from the District Court’s1 dismissal of his employment-discrimination action against his former employer. Upon careful de novo review, see Yankton Sioux Tribe v. U.S. Dep’t of Health and Human Servs., 533 F.3d 634, 639 (8th Cir.2008) (standard of review), we conclude that the dismissal was proper. Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.
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ORDER
Upon consideration of the petitioner’s motion to voluntarily dismiss his petition for review,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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PER CURIAM: *
The Federal Public Defender appointed to represent Francisco Javier Martinez-Castillo has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Martinez-Castillo has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The case in this appeal is one of over forty cases currently pending related to Hurricane Katrina that have been consolidated for pretrial purposes in the Eastern District of Louisiana. Plaintiffs-appellants, who suffered injuries due to Hurricane Katrina, have sued various federal, state, and local government agencies and officials, alleging that these entities breached their duties to prepare for and respond to the hurricane. The present appeal is taken from the district court’s dismissal of plaintiffs’ claims against the defendant-appellee, the United States of America, for lack of subject-matter jurisdiction. We affirm the dismissal.
I. Factual and Procedural Background
Plaintiffs sued the United States government for “tortious and illegal conduct” relating to its preparations for and response to Hurricane Katrina. Jurisdiction was premised on the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671, which waives federal sovereign immunity for injury, property loss, or death caused by any federal government employee “while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Plaintiffs alleged that the government’s conduct violated the following statutes, directives, and regulations1: *940the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C. §§ 5121, et seq.; the Homeland Security Presidential Directive/HSPD-5, which was issued by the President under authority granted in part by the Stafford Act;2 the 2004 National Response Plan (NRP), which was developed by the Department of Homeland Security under directions from the Homeland Security Presidential Directive; Section 5 of the Flood Control Act of 1941, 33 U.S.C. § 701 and 33 C.F.R. § 203; and the Lake Pontchartrain and Vicinity Louisiana Hurricane Protection Project promulgated under the Flood Control Act of 1965.3 Plaintiffs’ complaint listed nineteen “duties” that the government allegedly violated in its preparation for and response to Hurricane Katrina, but did not explain how these statutes, regulations, and directives gave rise to those duties.
The United States moved to dismiss for lack of subject-matter jurisdiction, claiming sovereign immunity and failure to exhaust administrative remedies. The district court granted dismissal on the basis of sovereign immunity, concluding that the FTCA’s discretionary function exception barred jurisdiction. The discretionary function exception provides that the FTCA’s waiver of sovereign immunity “shall not apply to ... [a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The district court analyzed each of the statutes, regulations, and directives that plaintiffs cited and concluded that none imposed mandatory duties on the United States government. The court entered final judgment under Federal Rule of Civil Procedure 54(b) on September 17, 2008, and plaintiffs filed a notice of appeal the following day.
Before the parties submitted their appellate briefs, this court decided Freeman v. United States, 556 F.3d 326 (5th Cir. 2009). In Freeman, the plaintiffs sued under the FTCA, claiming that the United States’s preparation for and response to Hurricane Katrina violated mandatory duties imposed by the NRP. We affirmed the district court’s dismissal for lack of subject-matter jurisdiction, concluding that neither the NRP nor the “Catastrophic Incident Annex” to the NRP imposed mandatory duties on the government. Id. at 336-341. We held that the discretionary function exception in the FTCA and a similarly-worded exception in the Stafford Act, 42 U.S.C. § 5148,4 therefore applied to preclude jurisdiction. Id. at 334-341.
On appeal, plaintiffs argue that Freeman is distinguishable and was wrongly decided (the latter argument being addressable only to the en banc court). Plaintiffs also contend, for the first time on *941appeal, that the NRP’s Catastrophic Incident Annex was not timely completed, and request discovery into the effect of the government’s alleged failure to timely complete the Annex. Plaintiffs finally urge that the district court’s opinion should be vacated because the district court judge improperly failed to recuse himself for personal bias. Plaintiffs have not otherwise briefed any challenge to the district court’s conclusion that the statutes, regulations, and directives that plaintiffs cited in their complaint impose only discretionary duties and therefore fall under the FTCA’s discretionary function exception.5
II. Standard of Review
“We review a district court’s dismissal for lack of subject matter jurisdiction de novo.” Stiles v. GTE Sw., Inc., 128 F.3d 904, 906 (5th Cir.1997). “In our de novo review ..., we apply the same standard as does the district court....” Wagstaff v. U.S. Dep’t of Educ., 509 F.3d 661, 663 (5th Cir.2007) (internal quotation marks and citation omitted). The district court “has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981). Here, the district court did not resolve any disputed facts, so like the district court, we “consider the allegations in the plaintiff[s’] complaint as true.” Id. at 412. Plaintiffs, as the party asserting subject-matter jurisdiction, have the burden to prove that jurisdiction is proper. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001) (per curiam).
III. Analysis
A. Freeman and the Discretionary Function Exception
Plaintiffs contend that Freeman’s holding — that the discretionary function exceptions in the FTCA and Stafford Act bar claims against the United States premised on violations of the NRP — is distinguishable because the present case involves “much broader classes of claimants” than did Freeman and involves claims “against potentially liable parties other than the United States.” Neither argument provides a basis for distinguishing Freeman. As the government points out, the application of the discretionary function exception does not turn on the number of plaintiffs in a case or on the existence of defendants other than the United States. The discretionary function exception turns on whether the statute that the United States is alleged to have violated imposes a mandatory duty. 28 U.S.C. § 2680(a). Plaintiffs have not briefed any challenge to the Freeman panel’s conclusion, consistent with the district court’s conclusion in the present case, that the *942NRP imposes only discretionary duties on the United States. Freeman, 556 F.3d at 336-341. Nor have plaintiffs briefed any challenge to the district court’s conclusion that the other statutes, regulations, and directives cited in plaintiffs’ complaint impose only discretionary duties on the United States.6
Plaintiffs also urge that Freeman was wrongly decided because it held that the discretionary function exception applied regardless of the severity of the tortious conduct alleged. Plaintiffs cite several federal government reports that they contend describe shortcomings in the government’s preparations for and response to Hurricane Katrina,7 and argue that the discretionary function exception should “not allow the Federal Government to escape legal liability in circumstances in which private citizens would be legally liable.” Plaintiffs contend that the panel in Freeman — and the district court in the present case — should have permitted discovery into the severity of the government’s conduct before concluding that the discretionary function exception applied.
Again, in addition to the fact that only the en banc court (or the Supreme Court) can overturn Freeman, this contention lacks merit. The plain language of the FTCA provides that sovereign immunity is not waived as to “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The FTCA’s waiver of sovereign immunity must be strictly construed, United States v. Sherwood, 312 U.S. 584, 590-91, 61 S.Ct. 767, 85 L.Ed. 1058 (1941), and Congress, in granting a waiver of sovereign immunity, may define the exact conditions of such waiver, Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967). “We are bound to apply ‘the plain language of the statute, especially where ... there is nothing in the statute or its legislative history to indicate a contrary intent.’ ” St. Tammany Parish, ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 320 (5th Cir.2009) (quoting In re DP Partners Ltd., 106 F.3d 667, 671 (5th Cir. 1997)). Under the plain language of the FTCA, the severity of the government’s conduct is immaterial if the duty that the conduct allegedly violated is discretionary. Freeman’s holding properly applied the FTCA’s discretionary function exception in upholding dismissal.
Plaintiffs contend that the result should differ under the discretionary function exception to the Stafford Act, which is substantially similar to the discretionary function exception to the FTCA but omits the phrase “whether or not the discretion involved be abused.” See 42 U.S.C. § 5148. Plaintiffs cite the omission for the proposition that the Stafford Act “does not immunize” tortious conduct by the United States. As in Freeman, we do not consider the import of this difference in statutory language because plaintiffs have not argued that United States agencies or *943agents abused their discretion; instead, they have argued that they lacked discretion. See Freeman, 556 F.3d at 336; see also St. Tammany Parish, 556 F.3d at 322 n. 9 (“We need not decide whether this distinction has any meaning in this case because the Parish has not argued that the government abused its discretion” — “it has limited its argument to whether the government had any discretion at all.”). Plaintiffs’ arguments do not provide a basis for concluding that Freeman was wrongly decided and do not provide a basis for vacating the district court’s dismissal in the present case.
B. The Catastrophic Incident Annex
Plaintiffs argue, for the first time on appeal, that the Catastrophic Incident Annex to the NRP was not prepared within 120 days of the issuance of the NRP, as plaintiffs contend the NRP required. Plaintiffs urge that if the Catastrophic Incident Annex had been timely prepared, it would have imposed mandatory duties on the federal government that would have applied to the preparations for and response to Hurricane Katrina. Plaintiffs also contend, for the first time on appeal, that they are entitled to discovery as to whether “the deprivations [plaintiffs] suffered would not have been suffered, or would not have been suffered over such a prolonged period of time,” had the Catastrophic Incident Annex timely been prepared.
There does not appear to be any factual basis for plaintiffs’ contention that the Catastrophic Incident Annex was not timely prepared. As we observed in Freeman, the Catastrophic Incident Annex was published as part of the NRP in December 2004. 556 F.3d at 330. The NRP did not prescribe a time for publication of the Catastrophic Incident Annex because these documents were published together.8 Further, we held in Freeman that the NRP and Catastrophic Incident Annex did not impose mandatory duties on the government. 556 F.3d at 336-341. Plaintiffs have not briefed any challenge to that conclusion on appeal, so even if plaintiffs were correct that the Catastrophic Incident Annex was not timely prepared, their contention that a timely-prepared Annex would have imposed mandatory duties would fail.
More fundamentally, even if plaintiffs’ arguments as to timeliness had merit, this court could not consider them as bases for relief because they are raised for the first time on appeal. See Butler v. Cain, 533 F.3d 314, 320 (5th Cir.2008); LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir.2007) (“[A]rguments not raised before the district court are waived and eannot be raised for the first time on appeal.”). Plaintiffs’ contentions as to the Catastrophic Incident Annex do not provide a basis for vacating the district court’s dismissal or granting discovery.
*944C. The Alleged Judicial Bias
Plaintiffs also contend that the district court’s dismissal should be reversed because the dismissal was “motivated, at least in part, by actual bias and prejudice and other judicial misconduct” by the district court. The source of the alleged bias is the district court’s alleged “close personal friend[ship]” with one of the attorneys that represented the state of Louisiana as a defendant in this case. Plaintiffs unsuccessfully moved the district court for disqualification under 28 U.S.C. § 144 and § 455.
A motion for recusal is committed to the sound discretion of the trial judge. United States v. Merkt, 794 F.2d 950, 960 (5th Cir.1986). We review the denial of a motion to recuse for abuse of discretion. Matassarin v. Lynch, 174 F.3d 549, 571 (5th Cir.1999). Motions for recusal under 28 U.S.C. § 144 or § 455 must be timely. See 28 U.S.C. § 144 (requiring a “timely and sufficient affidavit” as a basis for refusal); Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994) (recusal motion under § 455 should be timely). A timely motion to recuse is one filed “at the earliest moment after knowledge of the facts demonstrating the basis” for recusal. Liljeberg, 38 F.3d at 1410. The failure of a judge to recuse “does not provide a basis for reversal absent evidence of actual bias or a nexus between actual errors and the appearance of bias.” United States v. Edwards, 303 F.3d 606, 647 n. 32 (5th Cir.2002); see also United States v. Jordan, 49 F.3d 152, 158 (5th Cir.1995) (concluding that alleged bias did not provide a basis for reversal where the plaintiff failed to allege “an explicit nexus between the alleged errors and the appearance of bias”).
We agree with the district court that plaintiffs’ motion to disqualify was not timely. The district court judge disclosed his friendship with the attorney at issue in March 2006, at the outset of the consolidated litigation. Plaintiffs did not raise any objection. Plaintiffs’ claims against the state of Louisiana were dismissed on the basis of Eleventh Amendment immunity in June and September 2006. Plaintiffs did not move for recusal until January 2008, nearly two years after the friendship was disclosed and a year-and-a-half after the counsel at issue ceased to represent any defendant in this case.9 Furthermore, plaintiffs have not explained why any alleged partiality to the state of Louisiana, long dismissed from this litigation, would have affected the district court’s decision to dismiss plaintiffs’ claims against the federal government, and have not pointed to any actual errors in the district court’s judgment. The district court’s refusal to recuse does not provide a basis for reversal.
IV. Conclusion
Accordingly, we AFFIRM the judgment of the district court.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. Plaintiffs' complaint also alleged that these statutes, regulations, and directives provided independent bases for jurisdiction, but plaintiffs did not reurge this position in their opposition to the motion to dismiss. The district court concluded that these statutes, regula*940tions, and directives do not contain waivers of sovereign immunity, and therefore do not provide independent bases for jurisdiction over claims against the United States. Plaintiffs do not challenge this conclusion on appeal.
. See Homeland Security Presidential Directive/HSPD-5, 2003 WL 604606 (Feb. 28, 2003).
. Pub.L. No. 89-298, § 204, 79 Stat. 1073, 1077 (Oct. 27, 1965).
.The discretionary function exception to the Stafford Act states:
The Federal Government shall not be liable for any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Federal Government in carrying out the provisions of this chapter.
42 U.S.C. § 5148.
. Plaintiffs state that because the district court’s opinion and the Freeman panel opinion are "quite detailed,” they "will not use this opportunity simply to regurgitate the available body of jurisprudence on the issue of the discretionary function exception.” To the extent that this statement can be interpreted as asking this court to incorporate by reference issues and arguments that plaintiffs have previously raised, this does not preserve these issues and arguments for appellate review. See, e.g., Goodman v. Harris County, 571 F.3d 388, 399 (5th Cir.2009) (issues inadequately briefed on appeal are waived); Turner v. Quarterman, 481 F.3d 292, 295 n. 1 (5th Cir.2007) (refusing to consider arguments before the district court that plaintiff incorporated by reference on appeal, concluding that this was a failure to adequately brief); Katz v. King, 627 F.2d 568, 575 (1st Cir. 1980) (“If counsel desires our consideration of a particular argument, the argument must appear within the four corners of the brief filed in this court.”). Accordingly, we consider only the issues and arguments that plaintiffs have briefed on appeal.
. Plaintiffs do cryptically assert that Freeman is distinguishable because "this case includes arguments that either were not made in Freeman or which have been ‘bolstered’ herein since Freeman was decided.” But plaintiffs do not identify these arguments or explain why they would support a contrary result. Issues not raised or inadequately briefed on appeal are waived. See Goodman, 571 F.3d at 399.
. Plaintiffs did not cite these reports before the district court and do not attach them for this court's review, instead directing this court to a website that does not exist. Arguments not raised before the district court are waived, as are arguments inadequately briefed on appeal. Butler v. Cain, 533 F.3d 314, 320 (5th Cir.2008); Goodman, 571 F.3d at 399. These reports may not properly be considered on appeal.
. The NRP and Catastrophic Incident Annex did state that within 120 days of the NRP's publication in December 2004, the Department of Homeland Security should "[i]dentify appropriate assets and establish agreement and procedures for their rapid deployment” in accordance with a "Catastrophic Incident Supplement” that was to be "more detailed and operationally specific” than the Catastrophic Incident Annex and separately published. The Department of Homeland Security did not complete this task until September 6, 2005, beyond the 120-day window and after the events of Hurricane Katrina. We held in Freeman that the 120-day timeline was discretionary and that the government's failure to meet the deadline did not provide a basis for suit under the FTCA or the Stafford Act. See Freeman, 556 F.3d at 330 n. 1, 338. Plaintiffs have not briefed a challenge to this conclusion on appeal.
. The counsel at issue began representing the state of Louisiana as a plaintiff in the consolidated litigation in August 2007, when the state brought a class action suit against more than 200 insurance companies alleging that these insurers breached certain insurance contracts to which Louisiana was a partial assignee. See In re Katrina Canal Litig. Breaches, 524 F.3d 700, 702-04 (5th Cir. 2008). Plaintiffs complain that they are prejudiced by counsel’s current participation on the Plaintiffs' Liaison Committee for the consolidated litigation, but do not explain why they are prejudiced, particularly because plaintiffs’ interests are generally aligned with those of the Committee. More importantly, plaintiffs do not explain how counsel’s participation on the Committee would bias the district court in its adjudication of plaintiffs' claims against the United States.
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https://www.courtlistener.com/api/rest/v3/opinions/8474290/
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ORDER
The district court denied Greg Fort’s motion under 18 U.S.C. § 3582(c)(2) to modify his sentence of life imprisonment for crack-cocaine offenses on the ground that he was ineligible for a reduction. Fort appeals. We have held that district courts do not have authority to reduce a defendant’s sentence below the bottom of the range provided by the retroactive amendments to the sentencing guidelines. United States v. Cunningham, 554 F.3d 703, 709 (7th Cir.2009). Here, even under the amended crack-cocaine sentencing guideline, Fort’s total offense level remains 43, see U.S.S.G. ch. 5, pt. A, cmt. n. 2, and the applicable guidelines range remains life imprisonment. Thus, we AFFIRM the judgment of the district court.
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https://www.courtlistener.com/api/rest/v3/opinions/8474292/
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ORDER
Lawson Rose appeals from the district court’s order dismissing his employment-discrimination suit for failing to effect timely service under Federal Rule of Civil Procedure 4(m). We affirm.
In February 2008, Rose, a former postal worker, sued the United States Postal Service (and two other defendants who we need not discuss) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Two months later, in April, the district court dismissed the case for failure to pay the required filing fee. After Rose paid the fee, the court reinstated the case, warned Rose that failure to properly serve the defendant under Rule 4 would result in a dismissal of the action, and further directed him to timely file the appropriate returns or waivers of service of summons and complaint in order to avoid dismissal. Rose did nothing.
At status hearings in November and December, the court asked Rose whether he had served the defendant. When Rose replied at the second hearing that he had not, the court took the matter “under advisement” for review of the rules.
In December 2008, the court dismissed the case for failure to complete service. In a minute order the court noted that Rose had been warned that he had to serve the defendant: “The advice was embodied in a minute order in the public record and sent to plaintiff. Plaintiff states that he was unaware of this requirement but this is impossible to credit because in a previous case he did serve de*84fendants.” The court noted that eight months has passed and the defendant was not in hiding.
On appeal Rose argues that the district court abused its discretion by failing to provide relief from Rule 4(m)’s requirement for timely service. Under Rule 4(m), a plaintiff must serve process within 120 days of filing a complaint or else show “good cause” for any delay. Fed. R. Civ. P. 4(m). Rose contends that his delay is due to good cause — namely, his unfamiliarity as a pro se litigant with the “technicalities” of federal procedure.
But neither a party’s pro se status nor his inexperience as a litigant excuse him from complying with the requirements of Rule 4(m). McMasters v. United States, 260 F.3d 814, 818 (7th Cir.2001); Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir.1988) (“To hold that complete ignorance of Rule 4(j) [predecessor of Rule 4(m) ] constitutes good cause for untimely service would allow the good cause exception to swallow the rule.”).
Nor do we question the district court’s conclusion that Rose failed to show he was unaware of his Rule 4 requirements. Rose cannot explain why, after three directives from the court, he could not come to terms with his obligations, particularly since he had managed to serve process on the Postal Service in a previous suit. Rose has not pointed to anything in the record that casts doubt on the court’s finding that his excuse was not credible.
Finally, Rose argues for the first time in his reply brief that the court abused its discretion when it dismissed the case with prejudice. But Rose forfeited this argument by failing to raise it in his opening brief. Nick’s Cigarette City, Inc. v. United States, 531 F.3d 516, 524 & n. 2 (7th Cir.2008); APS Sports Collectibles, Inc. v. Sports Time, Inc., 299 F.3d 624, 631 (7th Cir.2002); Georgou v. Fritzshall, 178 F.3d 453, 457 (7th Cir.1999).
Accordingly, we AFFIRM the district court’s judgment.
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https://www.courtlistener.com/api/rest/v3/opinions/8474295/
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ORDER
After mailing a pipe bomb to the man dating his former girlfriend, Robert Smith was convicted in 2005 of knowingly possessing an unregistered destructive device, see 26 U.S.C. § 5861(d), knowingly making a destructive device without first applying or paying taxes, see id. at § 5861(f), attempting to destroy a building using an explosive, see 18 U.S.C. § 844(i), and using and carrying a pipe bomb in relation to a crime of violence, see id. at § 924(c)(1)(A). We affirmed his convictions and sentences on direct appeal. See United States v. Smith, 502 F.3d 680 (7th Cir.2007). Since then Smith has filed not one or two, but three motions for a new trial, see Fed. R.Crim.P. 33, a motion to reconsider the *86denial of one such motion, and a motion requesting the recusal of the district court judge. None of Smith’s filings has succeeded. He now appeals from the district court’s denial of his second and third motions for a new trial and his motion for recusal of the district court judge.1
As explained more fully in our opinion affirming Smith’s convictions, the evidence at trial established that Smith mailed a pipe bomb to an Allstate insurance agency in Crest Hill, Illinois in July 2003. The package containing the bomb was addressed to Leo Bick, who was at that time dating Smith’s former girlfriend. Fortunately for everyone involved, Smith’s pipe bomb did not work as planned. Although he had rigged it with wires, an ignitor, and a mousetrap so that it would explode when the package was opened, it failed to do so. Instead, the DuPage County Bomb Squad was able to deactivate the pipe bomb. After a year-long investigation, Smith was arrested and charged as described above.
The evidence at trial linking Smith to the bomb was fairly extensive, and included the discovery of his fingerprint on a plastic bag inside the bomb and a piece of hair stuck in the tape holding the bomb together that was a mitochondrial DNA match with Smith’s hair. Despite this extensive evidence, Smith continues to assert his innocence and advance various theories in support of his belief that he was framed. In support of his motions for a new trial, Smith claims that new evidence has emerged demonstrating his actual innocence. He asserts that after trial he learned from the Presentence Investigation Report about an allegedly unlawful search of his residence. He also claims that “sniffer dogs” were used to search for explosive powder, and that the dogs alerted to certain areas in the residence. According to Smith, his failure to learn about the use of the dogs before trial suggests that the dogs falsely alerted to the presence of explosive powder, a fact he believes would have somehow undermined most of the other evidence of guilt presented at his trial.
Smith also paints a complicated picture of a conspiracy between Judge Castillo, the law firm of Kirkland and Ellis, and Allstate Insurance Agency that he believes caused Judge Castillo to rule “heavily in favor of the prosecution.” Finally, Smith makes much of the fact that his trial counsel was a professor at the Bluhm Legal Clinic at Northwestern University School of Law and that Judge Castillo worked at Northwestern as an adjunct professor. The district court denied Smith’s motions for a new trial, concluding that he had failed to meet the stringent standards of Rule 33 or offer any information that called into question the “overwhelming” evidence of his guilt. The court also denied Smith’s motion for a recusal, deeming it both unnecessary and untimely.
We review the district court’s denial of Smith’s motions for a new trial under Rule 33 for an abuse of discretion. See United *87States v. Acosta, 534 F.3d 574, 592 (7th Cir.2008). Smith suggests that the prosecution’s failure to inform him of the results of the dog sniff amounts to a Brady violation and that a new trial is in order. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Fed. R.Crim.P. 33. A new trial is warranted when a defendant has evidence that (1) was discovered after trial; (2) could not have been discovered sooner with due diligence; (3) is material; and (4) would probably result in an acquittal if presented at trial. United States v. Reyes, 542 F.3d 588, 595 (7th Cir.2008).
Smith’s allegedly newly discovered evidence falls short of warranting a new trial across the board. First, although his brief suggests that he did not know about the search itself, the search was contested throughout the trial. Thus, the fact of the search is not by any means “newly discovered.” Moreover, assuming the results of the dog sniff search were not in fact tendered to Smith’s attorney (an unlikely possibility given that Smith’s attorney referred to “the report” from the search during trial), they are not material and would not have “probably” resulted in an acquittal. See Reyes, 542 F.3d at 595. Smith’s theory is that because he did not personally see the results of the testing done on swabs taken from those areas where the dog alerted to explosives, this must mean the swabs tested negative for the presence of explosives. Had he been able to present this information to the jury, Smith theorizes, it would have “opened [a] Pandora’s Box for the prosecution” that would have revealed that a government agent “probably planted evidence.” On the contrary, evidence that a dog falsely alerted to the presence of explosives would have done little to undermine the extensive evidence presented at trial that Smith was the would-be bomber. In particular, a false positive by an explosive-sniffing dog would not have impacted the verdict in any relevant way. See United States v. Daniel, 576 F.3d 772, 775 (7th Cir.2009) (no Brady violation where there was “no reasonable probability” that suppressed information would have led to acquittal); Reyes, 542 F.3d at 596 (new trial unwarranted where it was “hard to conceive” how newly discovered evidence would have affected the verdict).
Similarly, we are unconvinced by Smith’s insistence that a government agent planted a shotgun shell in the garage during the search. Leaving aside Smith’s various theories about how this happened, the evidence of his guilt did not depend on the shotgun shell. Nothing that Smith now advances as “new” evidence casts any doubt on the fact that his hair and his fingerprint were found on the bomb and its packaging, that he had a post office box at the location used to mail the bomb, and that he had threatened the victim, Leo Bick, in the past and had a motive to harm him. In short, the district court did not abuse its discretion by denying Smith’s Rule 33 motions. See Reyes, 542 F.3d at 596.
That leaves Smith’s claim that Judge Castillo should have recused himself and that his failure to do so warrants a new trial. We review the district court’s decision not to recuse himself for abuse of discretion, see Tezak v. United States, 256 F.3d 702, 716 (7th Cir.2001), and we can see none here. As relevant here, a district judge’s recusal is warranted only where there is information that supports a finding of actual “bias or prejudice,” 28 U.S.C. § 144, or if the judge’s impartiality “might reasonably be questioned.” 28 U.S.C. § 455(a). Significantly, Smith has failed to comply with the procedures for requesting recusal under either § 144 (requiring defendant to file an affidavit in support of his motion) or § 455 (renewable only upon a defendant’s filing of a writ of mandamus). See Tezak, 256 F.3d at 717 & n. 16. More*88over, the fact that both Judge Castillo and court appointed counsel worked in different capacities at Northwestern University does not call Judge Castillo’s impartiality into question. Likewise, the fact that the law firm of Kirkland and Ellis once employed Judge Castillo and now represents Allstate Insurance (the company for which Bick worked) presents no threat that a “reasonable, well-informed observer,” In re U.S., 572 F.3d 301 (7th Cir.2009), would have questioned Judge Castillo’s impartiality. Nor is any of the evidence Smith advances to support his theory of bias “newly discovered” as would be required to warrant a new trial under Rule 33.
For the foregoing reasons we AFFIRM the district court’s denial of Smith’s motions for a new trial and his motion for recusal of the district court judge.
. Smith first filed an untimely appeal from the district court's June 2008 denial of his third motion for a new trial and his motion for recusal of the district court judge. This court ordered a limited remand to allow the district court to rule on Smith's second motion for a new trial (filed in February of 2008) and determine whether Smith should be granted an extension to appeal from the June 2008 order under Fed.R.Crim.P. 4(b)(4). The district court then extended the time to file a notice of appeal from its June 2008 order, an order which had the effect of making Smith's earlier appeal (No. 08-2859) — which was filed within 30 days of the original deadline for appeal — timely. See Fed.R.Crim.P. 4(b)(4). The district court also denied Smith’s second motion for a new trial, and Smith filed a timely notice of appeal (No. 09-1836). We have consolidated his appeals for decision
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